I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Wednesday, May 03, 2006

Two-timing new members of Dover school board

IMPORTANT UPDATE --

This controversy has been revived on the following webpages --

http://www.evolutionnews.org/2006/05/did_dover_care_about_taxpayer_1.html

http://scienceblogs.com/dispatches/2006/05/francisco_and_dover_take_2.php

http://www.pandasthumb.org/archives/2006/05/a_little_knowle.html

One thing for sure is that the defenders of the board are starting to waffle. They are no longer speaking of the "voluntary cessation" doctrine in terms of absolute certainty, but are speaking of "maybes," "possibles," and "exceptions." In any case, the voluntary cessation doctrine was never a valid argument for not repealing the ID policy in December.

Colin, you have been adding insult to injury by attacking me by name where I have been banned, Panda's Thumb. I don't think that is very ethical.

Also, it is of course very unfair that regular commenters at Panda's Thumb are free to come over here and leave comments while I cannot leave comments over there (at least not under my real name).

==========================================

A recent American Enterprise Online article condemned the new members of the Dover school board -- who had campaigned on an anti-ID platform -- for missing an opportunity to possibly save legal fees for the school district. At the new school board's first meeting on Dec. 5, the board ignored a former board member's proposal to try to save legal fees by repealing the ID policy before the release of the Kitzmiller v. Dover decision, which was due in late December or early January (the decision was released on Dec. 20). Defenders of the board's inaction have argued that the school district would have been liable for the plaintiffs' attorney fees even if the judge had declared the case to be moot as a result of a repeal of the ID policy. However, this argument is contradicted by the following ruling of the US Supreme Court --

Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added)
From Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)


Hence, if Judge Jones had declared the Dover case to be moot, then according to the above ruling the plaintiffs would not have been eligible for an award of attorney fees. I possibly would have found this precedent sooner had I been able to get down to the Los Angeles County Law Library to do research.

Defenders of the board's inaction have also cited the "voluntary cessation" principle, which holds that a lawsuit is not mooted by voluntary cessation of a challenged action which could later be resumed (the "voluntary cessation" principle is also discussed in the Wikipedia article on "mootness" ). However, the syllabus of the above case, Buckhannon Board & Care Home, noted that this case was declared moot as a result of the state legislature's voluntary cessation of the challenged statute: "The state legislature then eliminated the 'self-preservation' requirement, and the District Court granted respondents’ motion to dismiss the case as moot." The state legislature did not agree to a consent decree promising to not re-instate the challenged statute, and I don't see how the legislature would have the authority to agree to such a consent decree. So obviously the voluntary cessation principle is not airtight, either in regard to the issue of mootness or the eligibility of the plaintiffs for an award of attorney fees. Maybe the courts tend to treat governmental and private defendants differently in regard to the "voluntary cessation" principle.

Here are some more thoughts about this matter --

(1) The new board would have had nothing to lose by following the former board member's proposal to try to save court costs by repealing the ID policy immediately, unless the board wanted to appeal (they did not). To me, this is the most important thing, and what makes the board`s inaction inexcusable.
(2) The new board scheduled Jan. 3 for discussion of the issue, which everyone knew would be too late to try the proposal because the decision was due in late December or early January. There were several ways that the board could have legally handled the matter before then. Pennsylvania law does not require advance notice of items that are discussed and voted on by public bodies, and the board could have scheduled a "special meeting" with short notice.
(3) Several newly elected board members indicated in mid-November that they did not want an out-of-court settlement even if they could get one -- they wanted to hear what the judge had to say in the case. See http://www.ydr.com/doverbiology/ci_3223198 This article, which is about the last meeting of the old board in November, was also my source for points #4 and #10 below.
(4) The proposal had already been presented at the mid-November meeting (the last meeting of the old board), so there had already been plenty of time to review the proposal.
(5) The fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors might have been considered to be a mitigating factor by the courts.
(6) The board`s inaction assured that the mootness question could never be considered by any court.
(7) Courts are completely unpredictable. For example, who would have imagined that the Supreme Court would approve display of the 10 Commandments on public property in one case and at the same time disapprove it in another ?
(8) The new board members had already been accused -- during the election campaigning -- of being in cahoots with the ACLU, which they strenuously denied. Yet once elected, they acted just like stooges of the ACLU.
(9) The old board could have done just as good a job of doing nothing as the new board. And even if the old board had been re-elected and decided to appeal, potential legal expenses would not have increased very much because an appeal would have been much cheaper than the district-court action.
(10) Also, as I already pointed out, Judge Jones improperly gave legal advice to the new school board when he said that the results of the board elections would not affect his decision.

Also, an article titled "The Discovery Institute really needs better Lawyers", written by an attorney, completely misrepresents the decision in Buckhannon (cited above), stating, "the court specifically upheld the palitff's entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." The exact opposite is true. Also, the American Enterprise Online article's false insinuation -- later retracted -- that one of the new board members, Bryan Rehm, was guilty of conflict-of-interest was blown way out of proportion.

==================================================

There is an important update at the top of this post.

Labels:

109 Comments:

Anonymous Colin said...

You should cite Buckhannon with a pin cite if you want readers to check the quotation in context:

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).

You misunderstand the case. That is hardly surprising; having read your posts, you are as bewilderingly ignorant of the law as you are of biology. You have the classic creationist myopia: you are unwilling or unable to understand any fact which might occlude your cherished preconceptions, and you are utterly convinced that those preconceptions are fatal to the work of professionals. You are wrong.

Buckhannon, which you either did not read or did not comprehend, is a case in which the defendant was a state agency. The case was mooted because the state changed the law. That is entirely different from a case in which a party voluntarily ceases an illegal action which is capable of repetition.

It is well settled that a party cannot moot a case by voluntarily ceasing an act capable of repetition. I'm fairly certain that this has been pointed out to you before, but, again, you don't seem eager to learn or consider new facts.

In Buckhannon, the Court wrote that the "District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments." Id. at 601. That is clearly not an analogous situation; the school board in Dover was obviously capable of flipping in the next election, where candidates would be running on a creationist platform.

This would, in other words, be a case where the action is "capable of repetition, yet evading review." See Bell v. Wolfish, 441 U.S. 520, 527 (1979). The challenged action was of a short duration because of the intervening election, and capable of repetition because such elections are regular and predictable.

Why do creationists assume that specialized knowledge is something that anyone with a library card can pick up in an afternoon? Professional biologists aren't troubled by the twittering of academic failures like Dembski et al, and your legal analysis isn't any more challenging to the district court here. You truly don't understand the legal issues, and you need a lot of study before your commentary sounds anything like competent or relevant to a professional.

For example, the article you linked pointed out other problems with creationist complaints about Kitzmiller, including other reasons why mootness would not have applied or saved the Board. But you chastise the article for saying that "the [C]ourt specifically upheld the palitff's [sic] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." The article is exactly correct--that is what Buckhannon holds. You assume so quickly that you understand the law, and a complicated Supreme Court decision, better than the author, a practicing attorney. The truth, though, is that you have no idea what you're talking about, and it only makes you look foolish.

Wednesday, May 03, 2006 2:38:00 PM  
Anonymous Anonymous said...

Colin, it's really much easier to summarize Larry's posts on law and biology:

"Larry, you don't know what the fuck you're talking about."

There, that sums it up nicely.

Wednesday, May 03, 2006 3:16:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/03/2006 02:38:36 PM ) --

>>>>>You misunderstand the case. That is hardly surprising; having read your posts, you are as bewilderingly ignorant of the law as you are of biology.<<<<<<

The next shithead who calls me ignorant of the law or biology is going to be scorched by a reply that will be the biggest flame that he ever got.

>>>>Buckhannon, which you either did not read or did not comprehend, is a case in which the defendant was a state agency.<<<<<

So? It is still a government agency, like the Dover school board. The only difference between the Dover case and the Buckhannon case is that in the latter case the voluntary cessation was made by a governmental entity (the state legislature) that was different from the governmental entity (the state agency) that was the nominal defendant. Also, basically the whole state was the defendant in Buckhannon because the challenged action was based on a state law and because the state would have been liable for any attorney fees. But in a way the Dover case was similar to the Buckhannon case because in Dover there were virtually two governmental entities involved, the new board and the old board, which were almost completely different in composition and views on ID (only one of the original board members was still on the board). Also, the Supreme Court did not even say that the Buckhannon decision applies only to lawsuits against the government.

>>>>>> The case was mooted because the state changed the law. That is entirely different from a case in which a party voluntarily ceases an illegal action which is capable of repetition.<<<<<

And you are saying that the state law which the legislature voluntarily repealed was not capable of repetition? LOL

>>>>>>In Buckhannon, the Court wrote that the "District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments." Id. at 601. That is clearly not an analogous situation; the school board in Dover was obviously capable of flipping in the next election, where candidates would be running on a creationist platform.<<<<<

And the West Virginia legislature was not capable of "flipping" in the next election? And it was certain that the current legislators would not change their minds?

>>>>>This would, in other words, be a case where the action is "capable of repetition, yet evading review." See Bell v. Wolfish, 441 U.S. 520, 527 (1979). The challenged action was of a short duration because of the intervening election, and capable of repetition because such elections are regular and predictable.<<<<<

Elections are "predictable" ? And politicians are "predictable" ? Please don't make me laugh.

Also, the Wikipedia article on "mootness" treats the "voluntary cessation" principle and the "capable of repetition, yet evading review" principle as two separate principles. I think that the latter principle applies to something that is likely to happen to large numbers of individuals, like getting pregnant ( Roe v. Wade was given as an example of a case where this latter principle was applied ).

Tell me -- why didn't the Supreme Court make all these great distinctions and clarifications that you made here, so that the Buckhannon decision could not be "misinterpreted"? Why didn't the Supreme Court discuss the Buckhannon case in terms of the "voluntary cessation" principle? Instead the court discussed the case in terms of the "catalyst theory," which the case syllabus describes as follows: "Petitioners requested attorney’s fees as the 'prevailing party' under the FHAA and ADA, basing their entitlement on the 'catalyst theory,' which posits that a plaintiff is a 'prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct."

>>>>Why do creationists assume that specialized knowledge is something that anyone with a library card can pick up in an afternoon?<<<<<<

For starters, I am not a "creationist." Furthermore, I did not pick up my knowledge of the law in an afternoon -- I spent countless days doing research in law libraries. And common sense often trumps specialized knowledge.

>>>>>For example, the article you linked pointed out other problems with creationist complaints about Kitzmiller, including other reasons why mootness would not have applied or saved the Board. But you chastise the article for saying that "the [C]ourt specifically upheld the palitff's [sic] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief."<<<<<

What "other reasons" ? The Buckhannon decision is the only legal authority cited in the article, and as I showed in my opening post, the very first sentence of the Buckhannon opinion expressly contradicts the above quote from the article.

BTW, that article "The Discovery Institute really needs better lawyers" said, "A former Discovery Institute lawyer teams up to write an article suggesting that a single Dover school board member had a huge conflict of interest because that newly elected board member was a plaintiff in the Kitzmiller case and obviously such a board member shouldn’t be approving the payment of the attorneys fees to the plaintiffs. Amazing. There’s no conflict of interest in such cases." Well, that board member felt that there was enough conflict of interest that he decided to abstain from the board's vote on approving the deal of a $1 million award to the plaintiffs.

Anyway, as the Supreme Court indicated in Edwards v. Aguillard, our debate does nothing to illuminate the new school board's reasons or motives for deciding against repealing the ID policy on December 5. The bottom line is that nothing that can be said now can excuse the new board's failure to repeal the ID policy at the December 5 meeting. The new board had nothing to lose by repealing the ID policy, and potentially had a lot to gain. The new board members just acted like stooges of the ACLU et al..

Wednesday, May 03, 2006 6:53:00 PM  
Blogger Larry Fafarman said...

Correction --

In my last comment, I wrote --
>>>>The Buckhannon decision is the only legal authority cited in the article, and as I showed in my opening post, the very first sentence of the Buckhannon opinion expressly contradicts the above quote from the article. (emphasis added)<<<<

That should have been "very first paragraph."

Wednesday, May 03, 2006 7:36:00 PM  
Anonymous Colin said...

The next shithead who calls me ignorant of the law or biology is going to be scorched by a reply that will be the biggest flame that he ever got.

That's very nice. But if people constantly tell you that you don't understand those topics, isn't it just possible that they are right? You really, truly don't comprehend the law in this case. I promise you that you aren't getting the principles involved. You aren't learning them, either. You just insist, loudly and often, that you're correct, whether or not all of the experts think your ideas are nonsense. It's the surest sign of a crank, in my opinion.

So? It is still a government agency, like the Dover school board...

*sigh* The important factor is not that the malfeasor was a state agency. The agency nature of the defendant is irrelevant—I mentioned it only as context, to illustrate (apparently poorly) that it was not engaged in a predictable periodic action. You stopped reading my comment one sentence too soon. What is relevant is that the bad act in question was not inherently repeatable in Buckhannon. The state could, theoretically, have passed the challenged law again, but that would have been an original and separate act. The Dover board's action was categorically different, in that the board was certainly going to come up for reelection, and there would certainly be a slate of candidates running in order to reinstate the creationist policy. The challenged policy ended before a dispositive end to the case, and was likely to repeat. Those are the essential elements.

And you are saying that the state law which the legislature voluntarily repealed was not capable of repetition? LOL

Yes. This is one of the many, many places where it is useful to have some experience reading and understanding legal principles. “Capable of repetition” does not mean that something could literally be repeated at some point. I don't have Westlaw handy from here at home, but Google brings up several cases citing to this definition: “Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975).”

And the West Virginia legislature was not capable of "flipping" in the next election? And it was certain that the current legislators would not change their minds?

From my reading of the facts, there was not a reasonable expectation that it would happen, no. General legislatures are very different from school boards. The board deals with a narrow range of topics, and obviously focused tightly on this one. Moreover, as a specific political issue, it is apparent to all observers that creationist candidates would have run exactly on this issue, intending to institute the same policy. Repealing a statue is a significant and almost always terminal act. Suspending a controversial policy supported by a politically active community is not. They are substantively different fact patterns.

Elections are "predictable" ? And politicians are "predictable" ? Please don't make me laugh.

Laugh. God knows I can't make you read or think.

Also, the Wikipedia article on "mootness" treats the "voluntary cessation" principle and the "capable of repetition, yet evading review" principle as two separate principles. I think that the latter principle applies to something that is likely to happen to large numbers of individuals, like getting pregnant ( Roe v. Wade was given as an example of a case where this latter principle was applied ).

You are wrong. Read it again.

Tell me -- why didn't the Supreme Court make all these great distinctions and clarifications that you made here, so that the Buckhannon decision could not be "misinterpreted"? Why didn't the Supreme Court discuss the Buckhannon case in terms of the "voluntary cessation" principle? Instead the court discussed the case in terms of the "catalyst theory," which the case syllabus describes as follows: "Petitioners requested attorney’s fees as the 'prevailing party' under the FHAA and ADA, basing their entitlement on the 'catalyst theory,' which posits that a plaintiff is a 'prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct."

Generally speaking, the Court didn't extend the analysis because the Court doesn't do that. It famously addresses the most narrow question possible, to avoid sweeping changes in the law. It's a fundamental, bedrock principle of jurisprudence.

Specifically speaking, you picked a good quotation. Buckhannon holds that the plaintiffs weren't prevailing parties because they obtained a resolution of their case without a judicial disposition. That didn't happen here, and couldn't have, because this case couldn't be mooted. There would have to be a judicial resolution, and that would make the Kitzmillers prevailing parties for the purposes of the fee shifting.

For starters, I am not a "creationist." Furthermore, I did not pick up my knowledge of the law in an afternoon -- I spent countless days doing research in law libraries. And common sense often trumps specialized knowledge.

Wow. Common sense often trumps specialized knowledge? I'll make sure to ask some random crank his opinion about my taxes next year, then. Or whether I can donate to a judge's electoral fund without violating the canons of ethics. Or whether Booker allows a sentencing court to impose a below-mandatory minimum sentence.

Apparently we both spend “countless days” doing research in law libraries. The difference is that I, like all of the other attorneys telling you that you don't understand the issue, am trained to understand the material and experienced enough to see the nuances. You are clueless. You don't have to be. There are lots of people without JDs who understand the issues – I don't think Ed Brayton is a lawyer, and his legal commentary is insightful and accurate. But you don't achieve either of those things – you just keep shouting over and over again that you're the only guy who sees the real issues at stake. Just like creationists keep insisting over and over again that they're the only ones who see how those foolish biologists, with their PhDs and laboratories and research and years of experience, just don't get it when it comes to evolution.

It takes more than a fiat assertion of “common sense” to fly in the face of the overwhelming expert consensus.

Well, that board member felt that there was enough conflict of interest that he decided to abstain from the board's vote on approving the deal of a $1 million award to the plaintiffs.

Then where was the conflict of interests? No lawyer in the case, not even the board's counsel, thought that they could dodge fees by mooting the issue. You're inventing supposed ethical violations out of whole cloth.

The bottom line is that nothing that can be said now can excuse the new board's failure to repeal the ID policy at the December 5 meeting.

Except the overwhelming consensus of every attorney attached to the case, all of the expert commenters that I've seen, as well as everyone with any inkling of how the law works. Neither the law nor any reasonable ethical standard requires a legislative body to undertake assuredly futile action in the hopes of dodging legitimate legal costs. I honestly don't understand your beef.

Wednesday, May 03, 2006 10:05:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/03/2006 10:05:43 PM ) --

>>>>But if people constantly tell you that you don't understand those topics, isn't it just possible that they are right?<<<<<

No.

>>>>The state could, theoretically, have passed the challenged law again, but that would have been an original and separate act.<<<<

So if the Dover school board had repealed the ID policy on December 5, then the board could also have enacted the ID policy again as "an original and separate act." I don't see the difference.

>>>>The Dover board's action was categorically different, in that the board was certainly going to come up for reelection, . <<<<<

The legislators were certainly going to come up for reelection again too, and in fact it could have been certain that they were going to be replaced because many states have term limits for legislators (I doubt that there are term limits for school board members).

>>>>>and there would certainly be a slate of candidates running in order to reinstate the creationist policy. <<<<<

And maybe there was a whole slate of candidates running in order to re-instate the "self-preservation" law that was repealed by the legislature in Buckhannon, or if not that law, maybe some other law that could come up in a similar situation.

>>>>>And you are saying that the state law which the legislature voluntarily repealed was not capable of repetition? LOL

Yes. <<<<

So you have a crystal ball that tells you what is likely to be repeated and what is not?

>>>>General legislatures are very different from school boards. The board deals with a narrow range of topics, and obviously focused tightly on this one. Moreover, as a specific political issue, it is apparent to all observers that creationist candidates would have run exactly on this issue, intending to institute the same policy. Repealing a statue is a significant and almost always terminal act. Suspending a controversial policy supported by a politically active community is not. They are substantively different fact patterns.<<<<<

You are making arbitrary and nitpicking distinctions. Furthermore, you have cited no legal authorities to support these distinctions that you are making. You are setting yourself up as an even greater authority that the US Supreme Court.

You have failed utterly to present any significant distinctions here between the Dover and the Buckhannon cases.

Finally, nothing changes the fact that the article I cited, "The Discovery Institute really needs better lawyers," completely falsifies the Buckhannon decision. The quotations in my opening post make that clear.

>>>>>Elections are "predictable" ? And politicians are "predictable" ? Please don't make me laugh.

Laugh. God knows I can't make you read or think.<<<<<<<

For example, just look at how many politicians have broken their campaign promises. LOL

>>>>>Also, the Wikipedia article on "mootness" treats the "voluntary cessation" principle and the "capable of repetition, yet evading review" principle as two separate principles.

You are wrong. Read it again.<<<<<

The two principles overlap in some respects, but Wikipedia discusses them under separate headings. I think that the biggest general distinctions are: (1) in "voluntary cessation," recurrence is a possibility and would be occasional, and the challenged action is not certain to cease its effect before litigation can be completed; and (2) in "capable of repetition, yet evading review," recurrence is certain and frequent (e.g., pregnancy), and the challenged action (e.g., prohibitions against abortion) is certain to cease its effect before litigation can be completed.

>>>>>Generally speaking, the Court didn't extend the analysis because the Court doesn't do that. It famously addresses the most narrow question possible, to avoid sweeping changes in the law.<<<<<<<

I presume that the Supreme Court would extend its analyses at least far enough to assure that its decisions are not grossly misinterpreted. And the court certainly did not give you the authority to extend the court's analyses.

>>>>> There are lots of people without JDs who understand the issues – I don't think Ed Brayton is a lawyer, and his legal commentary is insightful and accurate. But you don't achieve either of those things – you just keep shouting over and over again that you're the only guy who sees the real issues at stake.<<<<<

Wrong. I am the one who has never asked anyone to accept my word for anything. I always address the issues and present specific facts and arguments. That is why this blog is called "I'm from Missouri" -- the name comes from the famous quote, "I'm from Missouri -- you'll have to show me."

>>>>>Well, that board member felt that there was enough conflict of interest that he decided to abstain from the board's vote on approving the deal of a $1 million award to the plaintiffs.
Then where was the conflict of interests? No lawyer in the case, not even the board's counsel, thought that they could dodge fees by mooting the issue.<<<<<

This had nothing to do with trying to dodge fees by mooting the issue. The vote described above occurred after the decision was released. A board member who was a Dover plaintiff abstained from the vote because he thought that there was a conflict of interest involved, and I agree with him. The author of that article disagrees with him.

>>>>>The bottom line is that nothing that can be said now can excuse the new board's failure to repeal the ID policy at the December 5 meeting.
Except the overwhelming consensus of every attorney attached to the case, all of the expert commenters that I've seen, as well as everyone with any inkling of how the law works.<<<<<

The attorneys attached to the case are biased, so their opinions can be discounted immediately. The plaintiffs' attorneys declined to comment, anyway. And I don't care what your "expert commenters" think, because the school board had no valid reason to keep the ID policy. The new board members had campaigned on a platform of opposing the ID policy and saving taxpayer money. Even if trying to moot the case by repealing the policy was a longshot, there was no reason not to try it.

Also, I have never seen a legal brief argue that the opposing arguments should be rejected just because they make novel interpretations of the law. Attorneys have made some very far-fetched interpretations of the law, such as trying to apply anti-racketeering (RICO) laws to abortion-clinic demonstrators. In contrast, my interpretations of the law have been extremely narrow and literal.

>>>>>Neither the law nor any reasonable ethical standard requires a legislative body to undertake assuredly futile action in the hopes of dodging legitimate legal costs.<<<<<

But the action to dodge legal costs was not futile in the Buckhannon case.

>>>>>I honestly don't understand your beef.<<<<<<

And what is your beef ? Why are you trying to defend the new Dover school board members ? What are they to you ?

=======================

Panda's Thumb frequently has opening posts that attack opposing blogs and websites, yet so far has left this new blog alone. The Panda's Thumb bloggers could hardly be unaware of this blog, where several regular commenters from Panda's Thumb have already left many comments. I think that the reason why PT bloggers ignore this blog is that they find my arguments too airtight. So far, they have not tried to show that they think otherwise.

Thursday, May 04, 2006 1:48:00 AM  
Blogger DaveScot said...

Excellent points, Larry.

Colin, you don't know what the hell you are talking about.

Thursday, May 04, 2006 6:13:00 AM  
Anonymous Anonymous said...

">>>>But if people constantly tell you that you don't understand those topics, isn't it just possible that they are right?<<<<<

No."

It is official.

Larry knows more about biology than any assemblage of biologists on the planet.

Larry knows more about law than any assemblage of lawyers on the planet.

hubris

n : overbearing pride or presumption

delusions of grandeur

n : a delusion (common in paranoia) that you are much greater and more powerful and influential than you really are

WRITE THAT DOWN!

Thursday, May 04, 2006 7:23:00 AM  
Blogger Alan Fox said...

Larry writes:

I think that the reason why PT bloggers ignore this blog is that they find my arguments too airtight.

I'm sorry to disappoint you, Larry, but I rather think they ignore you because they find your arguments laughable.

Thursday, May 04, 2006 9:22:00 AM  
Blogger Alan Fox said...

DaveScot writes:

Excellent points, Larry.

I think the irony might be too subtle for Larry, Dave.

BTW, haven't seen much of you at UD lately, you must be spending too much time out on Lake Travis with your binoculars. It wouldn't be a case of a little enforced R & R from Dr. D, would it?

Thursday, May 04, 2006 9:28:00 AM  
Anonymous Anonymous said...

BTW, haven't seen much of [DaveScot] at UD lately, you must be spending too much time out on Lake Travis with your binoculars.

He also own a microscope. Makes you wonder what he uses it for. Searching for something smaller than normal? Perhaps his overbearing personality is ... compensation?

I [LaLaLarry] think that the reason why PT bloggers ignore this blog is that they find my arguments too airtight

Airtight?

Did you mean "airhead-ish", instead?

airhead

n 1: a flighty scatterbrained simpleton;

Thursday, May 04, 2006 10:10:00 AM  
Anonymous Anonymous said...

Mr Potato Head or a Time Traveler, which is the intelligent designer??

THAT is the question I want answered!

Oh, and Dave Tard got a smack down from Dr Dork. That's why he hasn't been posting much lately and why all the christian fundies seem to be coming out of the wood work all the sudden over at uncommonly dense.

I love it so!

Thursday, May 04, 2006 10:13:00 AM  
Blogger Larry Fafarman said...

Alan Fox said ( 5/04/2006 09:22:28 AM ) --

>>>>>Larry writes:

I think that the reason why PT bloggers ignore this blog is that they find my arguments too airtight.

I'm sorry to disappoint you, Larry, but I rather think they ignore you because they find your arguments laughable. <<<<<

Well, Alan, you have just given a great compliment to the several blogs and websites which Panda's Thumb frequently attacks. You are saying that PT frequently attacks those blogs and websites because PT frequently finds their arguments to not be laughable (and PT in fact frequently finds their arguments to be very persuasive).

Sorry to disappoint you, Alan, but I just took your own argument and stuck it up your ass.

Anyway, I wish to apologize to those other blogs and websites for implying that their arguments are not airtight. Their arguments usually are.

Thursday, May 04, 2006 10:55:00 AM  
Blogger Alan Fox said...

Actually you're right, Larry. I thought afterwards that to find your arguments laughable, PT contributors would first have to read your blog.

I don't really give a toss, Larry, I just enjoy reading PT, like to prod John when he's about, and maybe catch Springer on a raw spot.

ID may still have some mileage in redneck country but it has always been crank science to me. I really am only interested in the sociology and your blog happened to attract a few crackpots for a while. It has slowed down a bit now, though.This may have something to do with the fact that you don't have anything new or interesting to say.

Thursday, May 04, 2006 11:12:00 AM  
Anonymous Colin said...

Sigh. You have a bad case of pro se syndrome. You’ve found a case that you are sure controls the issue at hand. But you misunderstand the case, partly because you don’t understand the terms or the standards involved, and you don’t see how it fits into the context of the issue. And because you are so contemptuous of experts and unwilling to study the issue, you aren’t picking up on the problems in your analysis. It makes you look—and I can’t stress this enough—like an abject fool.

Buckhannon is not applicable to Kitzmiller. Buckhannon is about whether, once a case is mooted, the plaintiffs can recover attorneys’ fees. The Court held in that case that they could not, because the mootness meant that the plaintiffs were not “prevailing” parties. Because of the mootness. Kitzmiller was not a mootable case, so Buckhannon is not analogous and does not control.

First, it’s not clear that it would control even if it were analogous. One of the many issues you don’t clearly understand is the nature of fee-shifting. In Kitzmiller, the abrogation of the normal American Rule was pursuant to 42 USC § 1988. But Buckhannon is about the fee shifting provision of 42 USC § 12205. Both rely on the “prevailing party” language, but there are other statutory considerations. If the board had tried to duck the plaintiffs’ fees in Kitzmiller, they probably would have searched for a more relevant case—one that dealt squarely with §§ 1983 and 1988. I think the analysis would be the same, but it’s not something that can be safely assumed, as you do.

But there is another, more important reason why Buckhannon is irrelevant. And I have to apologize for not bringing this up earlier—sometimes, when discussing the law with an ignorant person, it is easy to discuss the issue on a lay level and disregard the actual legal questions. That is what I did earlier; I got caught up trying to explain the flaws in your terrible analysis of Buckhannon and Kitzmiller by discussing your confused arguments, rather than engaging in a serious legal analysis.

The plaintiffs in Kitzmiller did not sue the state of Pennsylvania. They sued a division of the municipality of Dover. That means that they could sue for damages, not just an injunction. That makes the mootness standard different than the one in Buckhannon, in which there was no claim for damages. As Rehnquist explained in that case:

“And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case. Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant's
voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and citations omitted).” Buckhannon, 532 U.S. at 609 (emphasis added).

If the board had taken your incredibly poor advice, it would have been incumbent on them to show why it was “absolutely clear” that the wrongful behavior “could not reasonably be expected to recur.” Id. And of course they couldn’t do that - the board squeaked by in the elections, challenged by creationist candidates who will certainly run next time, could certainly win, and would then certainly (barring a court order) reinstate the policy. The board could never have met this burden.

But of course, none of this will convince you. You are a victim of pro se syndrome. You’ve become convinced that you are Holmes reborn, a strutting juggernaut of “common sense” to shake down the edifice of law. I doubt that any amount of actual legal reasoning will suffice to show you why you are so incredibly wrong; like most creationists, you know that you’re right, regardless of the evidence. And, as DaveScot shows, other creationists will back you up 100% for as long as you’re marching to the politically correct tune. But to experts and objective observers who are aware of how grievously flawed your analyses are, you just look like a gibbering moron.

Thursday, May 04, 2006 1:14:00 PM  
Blogger DaveScot said...

Alan,

I have a PC/server with broadband internet on my boat. There's a 180 degree water view at the keyboard. It has 3 webcams connected to it so I don't have to actually be there to see the view. But I'm usually there overnight 10 days a month or so in the winter and twice that in the summmer. Life is good.

Thursday, May 04, 2006 1:46:00 PM  
Blogger DaveScot said...

colon

If anyone ever told you that you know anything about the law they were lying. Fafarman is making a fool of you.

p.s. I'm not a creationist.

Thursday, May 04, 2006 1:50:00 PM  
Anonymous Anonymous said...

have a PC/server with broadband internet on my boat. There's a 180 degree water view at the keyboard. It has 3 webcams connected to it so I don't have to actually be there to see the view.
Wanking off to video of chicks who don't even know you're not there.

Now THAT'S real class, Dave, real class.

Thursday, May 04, 2006 1:52:00 PM  
Blogger Alan Fox said...

I prefer the Med to a reservoir in a desert, Dave. Check out Cap d'Agde or Pamplona Beach at St. Trop.

BTW I have to admire you for that one moment of clarity when you closed Sal's thread on Genetic-ID. Sal might have invited the wingnuts on ARN who still flog that dead horse over, and Dr. D. would have looked even sillier. Smart move. Don't make a habit of it, though. That would spoil our fun.

Thursday, May 04, 2006 2:44:00 PM  
Blogger Larry Fafarman said...

DaveScot said...

>>>>colon

If anyone ever told you that you know anything about the law they were lying. Fafarman is making a fool of you.<<<<

Thanks very much for your support, Dave.

Thursday, May 04, 2006 3:15:00 PM  
Anonymous Colin said...

Colin: "And, as DaveScot shows, other creationists will back you up 100% for as long as you’re marching to the politically correct tune."

Larry: "Thanks very much for your support, Dave."

A testable prediction, fully confirmed.

Do you have a comment on the case analysis? I'm curious how you intend to twist, ignore, or confuse the Court's statement, "so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case."

Thursday, May 04, 2006 3:40:00 PM  
Blogger DaveScot said...

Alan,

re the med

Saltwater sucks. You can keep it. I guarantee the scenery is better here too with the University of Texas at Austin a stone's throw away. I had my boat in a slip at Carlos & Charlies the first year I owned it, about 100 feet from the dance floor, but it was just too wild there for a family man such as myself. This isn't a desert here either. Average annual rainfall is 33 inches, or a few inches more than the vineyards in the South of France. We even have vineyards here. The mouth of the Pedernales is about 30 miles up the river from me - less than an hour away by jetboat or about four hours in the houseboat. I'm afraid your notion of a resevoir is misinformed. Lake Travis is a 60 mile stretch of the Colorado River between two dams. Technically it's a manmade lake because of the dam. The Pedernales River empties into it between the dams.

Life is SO good.

Thursday, May 04, 2006 6:37:00 PM  
Blogger DaveScot said...

Anonymous "Wanking off to video of chicks who don't even know you're not there."

A classic case of projection.

Thursday, May 04, 2006 6:45:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/04/2006 01:14:04 PM ) --

>>>>>In Kitzmiller, the abrogation of the normal American Rule was pursuant to 42 USC § 1988. But Buckhannon is about the fee shifting provision of 42 USC § 12205. Both rely on the “prevailing party” language, but there are other statutory considerations.<<<<<

What is the big difference between 42 USC § 1988 and 42 USC § 12205 ? Both use similar language. And what are the "other statutory considerations" ?

>>>>>>I have to apologize for not bringing this up earlier—sometimes, when discussing the law with an ignorant person, it is easy to discuss the issue on a lay level and disregard the actual legal questions.<<<<<<<

I already warned you about the consequences of calling me ignorant, you stupid, pompous ignoramus.

>>>>>I got caught up trying to explain the flaws in your terrible analysis of Buckhannon and Kitzmiller by discussing your confused arguments, rather than engaging in a serious legal analysis.<<<<<<

Oh yes -- just more excuses.

>>>>>The plaintiffs in Kitzmiller did not sue the state of Pennsylvania. They sued a division of the municipality of Dover. That means that they could sue for damages, not just an injunction.<<<<<

There might not necessarily be a difference. The federal and state governments sometimes claim so-called "sovereign immunity," but this sovereign immunity is often waived by statutes or might apply just to suits seeking monetary damages. Anyway, this distinction over "damages" is not relevant here, as I show below.

>>>>>>(citing Supreme Court opinion) -- “And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case. <<<<<<

Your raising this issue of "damages" shows that you are really desperate. Monetary damages were not a significant factor in Kitzmiller, for the following reaaons --

(1) The Constitution does not authorize monetary damage awards for 1st amendment violations, and I am not aware of any statute that authorizes such damages.

(2) The 11 Dover plaintiffs each received the piddling award of $1, for a total damage award of just $11.

(3) The plaintiffs never specified the amount of monetary damages that they were seeking, so there was no way that the board could have offered a monetary out-of-court settlement.

Was the monetary damages claim just a gimmick to try to prevent the case from being declared moot ? Please forget about the monetary damages claim -- it is not relevant to the Dover case.

>>>>>>If the board had taken your incredibly poor advice, it would have been incumbent on them to show why it was "absolutely clear" that the wrongful behavior “could not reasonably be expected to recur.” Id. And of course they couldn’t do that - the board squeaked by in the elections, challenged by creationist candidates who will certainly run next time, could certainly win, and would then certainly (barring a court order) reinstate the policy.<<<<<

And if the board couldn't do it (i.e., show that recurrence was unlikely), then they couldn't do it -- but it would have cost them nothing to try. Anyway, I doubt that those "creationist" candidates would have a good chance of winning future elections -- I presume that the citizens of Dover, having been through the wringer once, have no strong desire to go through the wringer again.

In Buckhannon, the state government was allowed to escape liability for attorney fees just by repealing the challenged statute. There was no evidence whatsoever that the statute was unlikely to be reinstated -- and if such reinstatement was unlikely in Buckhannon, there would be other cases where reinstatement might be a stronger possibility. You have not shown any substantial difference between the Buckhannon and Dover cases, either in regard to monetary awards or the "voluntary cessation" principle. You have shown no reason why the courts should have treated the Dover school board in Kitzmiller any differently from how they treated the West Virginia government in Buckhannon in regard to declaring the case moot in response to a repeal of the challenged enactment.

Tell me -- is this the way that you argue in court and in your legal briefs?

Furthermore, that case Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000), which is often cited as a prime example of the "voluntary cessation" principle, is often quoted out of context. In this decision, the court admitted that application of the principle is discretionary and often dilemmatic -- The plain lesson is that there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.(from the syllabus of Friends of Earth, http://www.law.cornell.edu/supct/html/98-822.ZS.html ).

Anyway, as I said a zillion times, the school board had no valid reason for not repealing the ID policy in December.

>>>> I doubt that any amount of actual legal reasoning will suffice to show you why you are so incredibly wrong; like most creationists, you know that you’re right, regardless of the evidence. <<<<<<

For starters, I am not a creationist.

Furthermore, you Darwinists and attorneys think that you are automatically entitled to win all of your debates. You regard your debating adversaries as just ignorant people who debate you for the sole purpose of being "educated." Once you have inevitably "refuted" their arguments, they are not supposed to raise those arguments again.

Thursday, May 04, 2006 9:39:00 PM  
Anonymous Colin said...

We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.

What is the big difference between 42 USC § 1988 and 42 USC § 12205 ? Both use similar language. And what are the "other statutory considerations" ?

One consideration would be that there is specific caselaw establishing that nominal damages (the $1 award you so ignorantly dismiss) make a plaintiff a prevailing party under 1988. See Farrar v. Hobby, 506 U.S. 103 (1992) (“We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.”), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=506&invol=103. It is possible that similar cases exist for 12205, or even that precludes nominal damages as a qualifier for prevailing party status, since it is apparently geared towards suits against state governments. I don’t know, however, because I’m not familiar with that statute. That’s why I would research before making assumptions. It’s a habit you should cultivate.

I already warned you about the consequences of calling me ignorant, you stupid, pompous ignoramus.

If you don’t like to be called ignorant, then learn. You are so obviously wrong that it’s shameful for you to keep insisting, over and over again, that you’ve magically invented a legal argument that outwits all of the attorneys involved in the case. You. Are. Wrong. You don’t understand the cases or the issues. You could, but you’ve adopted the classic creationist tactic of repetition and obstinacy rather than education and consideration.

>>>>>The plaintiffs in Kitzmiller did not sue the state of Pennsylvania. They sued a division of the municipality of Dover. That means that they could sue for damages, not just an injunction.<<<<<

There might not necessarily be a difference. The federal and state governments sometimes claim so-called "sovereign immunity," but this sovereign immunity is often waived by statutes or might apply just to suits seeking monetary damages. Anyway, this distinction over "damages" is not relevant here, as I show below.


There “might not necessarily be a difference”? There is a difference. Read the case you keep hammering, and you would see it. Footnote 10 of Buckhannon: “Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974). Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977).”

There is a difference. It is obvious to anyone who has read the case. But you don’t bother to research – you just make assumptions and assertions. I keep calling you ignorant because you really are ignorant. But you don’t have to be! Read!

Nor is it true that the difference is minimized because a state government might waive their immunity. That might make a state gov’t liable for damages, but what relevance does it have to an entity that is already liable for damages? None – you just throw it out there because it sounds relevant.

And the distinction is very relevant – again, read the cases. Buckhannon says, very plainly, “so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Are those words confusing you somehow?

Your raising this issue of "damages" shows that you are really desperate. Monetary damages were not a significant factor in Kitzmiller, for the following reaaons --

Sigh. It shows that I’ve read the cases. Why not do the same?

(1) The Constitution does not authorize monetary damage awards for 1st amendment violations, and I am not aware of any statute that authorizes such damages.

That is because you are abominably ignorant of the law. Read 42 U.S.C. 1983, the statute under which the Kitzmiller plaintiffs sued. The first sentence reads, in part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Here is where actual knowledge comes in handy---an “action at law” is a request for damages, while a “suit in equity” is a request for an injunction. (The difference comes from old English law, from whence ours came. These days, plaintiffs do not need to specify which sort of action it is, they just need to request appropriate relief. But back then, they were two separate courts. Nowadays it’s just a way to distinguish two types of relief.)

Did you really think the judge just overlooked the fact that the law doesn’t allow money damages? Did you think it was a “gotcha” moment? It wasn’t – the judge is not an idiot, and knew what he was doing when he awarded nominal damages.

(2) The 11 Dover plaintiffs each received the piddling award of $1, for a total damage award of just $11.

As I’ve said (and as ten minutes of research would have shown you) nominal damages are quite clearly sufficient. See Farrar v. Hobby, 506 U.S. 103 (1992) (“We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.”).

(3) The plaintiffs never specified the amount of monetary damages that they were seeking, so there was no way that the board could have offered a monetary out-of-court settlement.

Please read before you type. It will stop you from making errors that would humiliate an intellectually honest man. From the judgment, pp. 2-3: “Plaintiffs seek declaratory and injunctive relief, nominal damages, costs, and attorneys’ fees.” Nominal damages are traditionally $1, although this amount is almost certainly specified in the complaint. The amount would not have been relevant to any settlement negotiations – the plaintiffs requested nominal damages, which wouldn’t be nominal if they couldn’t be paid out of pocket. Nor is your point otherwise relevant - this case could not have been mooted.


Was the monetary damages claim just a gimmick to try to prevent the case from being declared moot ? Please forget about the monetary damages claim -- it is not relevant to the Dover case.

Yes, it is. You cherish your ignorance like it is a precious thing. Nominal damages are not a “gimmick” – they are a common and important part of the practice of law. They have a long and storied history. Hell, even Wikipedia has an article on nominal damages. Do you bother to do any research? Please try it. You don’t want to wind up like Dembski, wandering in the wilderness, succored by sycophants and pitied by honest men…

And if the board couldn't do it (i.e., show that recurrence was unlikely), then they couldn't do it -- but it would have cost them nothing to try.

They have no legal or ethical burden to attempt futile measures. In fact, it’s possible that if their attorneys had counseled them to try mooting the case, they would have been in breach of their ethics – attorneys are not allowed to advise their clients to undertake deceptive measures. Not, however, that anyone would have called them on it. It would, I think, have been a de minimis violation.

Anyway, I doubt that those "creationist" candidates would have a good chance of winning future elections -- I presume that the citizens of Dover, having been through the wringer once, have no strong desire to go through the wringer again.

That’s what we thought about Kansas. But creationists keep coming back, and they’re better at getting out the vote in years in which their contumacy isn’t a front-page issue.

In Buckhannon, the state government was allowed to escape liability for attorney fees just by repealing the challenged statute.

Yes---because it was a suit in equity. The standards were different. Just like Rehnquist says, in black and white. Read it twice.

There was no evidence whatsoever that the statute was unlikely to be reinstated -- and if such reinstatement was unlikely in Buckhannon, there would be other cases where reinstatement might be a stronger possibility.

You have the presumption backwards, and you haven’t put the case in context. None of this matters, though, because it’s not relevant to a suit for damages.

You have not shown any substantial difference between the Buckhannon and Dover cases, either in regard to monetary awards or the "voluntary cessation" principle.

Except that one had money damages and could not have been mooted.

You have shown no reason why the courts should have treated the Dover school board in Kitzmiller any differently from how they treated the West Virginia government in Buckhannon in regard to declaring the case moot in response to a repeal of the challenged enactment.

Read footnote 10 again. They should have treated the board differently because it was not the state, and susceptible to money damages.

Tell me -- is this the way that you argue in court and in your legal briefs?

Yes---correctly, with citations to and an understanding of the law. Try it sometime.

Anyway, as I said a zillion times, the school board had no valid reason for not repealing the ID policy in December.

Yes – you say it a zillion times, and every time someone patiently shows you why you are wrong. You never listen, you never learn, and you never improve your arguments – you just spiral into ignorance and intellectual dishonesty. Repetition is not the same as argumentation---not even in law.


Furthermore, you Darwinists and attorneys think that you are automatically entitled to win all of your debates. You regard your debating adversaries as just ignorant people who debate you for the sole purpose of being "educated." Once you have inevitably "refuted" their arguments, they are not supposed to raise those arguments again.

No, I think I win the debate because the law is unambiguous. You have not made a case that any honest attorney would take seriously – your arguments are erroneous and wrong. But because you won’t admit that, you can’t improve them. Repeating them isn’t the same as proving them. Read the cases. Ask yourself why only yourself and maybe a few creationist lawyers with an ulterior motive take this crap seriously? It’s because, like YECers, IDists, and tax protestors, your fervor does not make your arguments correct. Only evidence (or, here, persuasive legal authority) would do that, and you haven’t offered any.

I do have to say that I enjoy these exchanges. It confirms my opinion of the ID-camp: damned ignorant, and damned proud of it.

Friday, May 05, 2006 2:02:00 AM  
Anonymous Colin said...

Whoops, that first sentence is a random snippet from Farrar, accidentally left in. Please ignore it, unless you're Larry - in that case, please read it.

Friday, May 05, 2006 2:03:00 AM  
Anonymous W. Kevin Vicklund said...

Actually, Colin, in item c) in the original complaint's Prayer for Relief, the plaintiffs requested nominal damages without specifying a dollar amount (however, since nominal damages are normally $1, most people would assume nominal=$1). Of course, it is not necessary to specify a dollar amount for it to be considered damages. Damages is damages, no matter the amount. Aside from that, excellent analysis, Colin.

Friday, May 05, 2006 4:52:00 AM  
Blogger Alan Fox said...

Dave

Having read up on Carlos & Charlies, I can see how it would appeal to you, especially the sophisticated food and entertainment. As for desert, I was being influenced by some of the aerial shots of the area. Looks a bit bleak, but then I'm sure it's very nice really. Mind you, it does seem like a cultural desert, at least.

Man-made lake, yes; reservoir, no? In any sane person's book they are synonyms.

BTW, congratulations, I see your list of Doctors against Darwin is racing up from 17 to 20 in the last couple of months. I should set one up for ex-Dell employees, if I were you, that could be equally influential.

Friday, May 05, 2006 8:51:00 AM  
Blogger Larry Fafarman said...

Response to comment by Colin on 5/05/2006 02:02:09 AM --

The big question that no one has answered yet is what good reason the Dover school board had for not repealing the ID policy at the December 5 meeting. And even providing such a reason now (which you have not) could not exonerate the board, because that reason could not have been a factor in the board's decision. The Supreme Court has clearly stated the manifest truth that "Monday morning" arguments are too late --

The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law -- from Edwards v. Aguillard

Having injured respondent solely on the basis of an unlawful classification, petitioner cannot now hypothesize that it might have employed lawful means of achieving the same result. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 265-266. --from Regents of the Univ. of Calif. v. Bakke

And even if your arguments had some merit, they could not exonerate the Dover school board even if the board had known about them, because the courts might have reached conclusions different from yours.

So the only reason why I am spending time arguing with you is to show that you are full of crap.

>>>>>>What is the big difference between 42 USC § 1988 and 42 USC § 12205 ? Both use similar language. And what are the "other statutory considerations" ?
One consideration would be that there is specific caselaw establishing that nominal damages (the $1 award you so ignorantly dismiss) make a plaintiff a prevailing party under 1988. See Farrar v. Hobby, 506 U.S. 103 (1992) (“We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.”), <<<<<<

The decision to strike down the Dover school board's ID policy was alone enough to make the Dover plaintiffs prevailing parties under 42 USC § 1988. Sheeeesh.

>>>>>Here is where actual knowledge comes in handy---an “action at law” is a request for damages, while a “suit in equity” is a request for an injunction.<<<<<<

That is bullshit. When the law means "damages," the law says "damages," and when the law means "injunction," the law says "injunction." Laws are not written in a secret code consisting of buzzwords.

Damages are allowed under Sections 1983 and 1988 because there may actually be a monetary loss or some irreversible harm involved. But such was not the case in Dover -- the award of just $1 per plaintiff shows that.

>>>>>>Was the monetary damages claim just a gimmick to try to prevent the case from being declared moot ?

Yes, it is. <<<<<

Aha ! The truth is out !

>>>>>Nominal damages are not a “gimmick” – they are a common and important part of the practice of law.<<<<<

But you just admitted that they were a gimmick in the Dover case !

Nominal damages are obviously just a silly token of vindication that are sometimes granted when the court reaches a judgment on the merits but provides no serious form of relief (i.e., the court does not order that anything be done or award substantial damages). Nominal damages are not necessary to identify a prevailing party -- the official opinion can simply expressly identify a prevailing party. Nominal damages serve no useful purpose and I think that they are frivolous and stupid. Anyway, nominal damages were obviously inappropriate in the Dover case because a serious form of relief was provided.

>>>>>Did you really think the judge just overlooked the fact that the law doesn’t allow money damages? Did you think it was a “gotcha” moment?<<<<<<

You are treating it as a "gotcha" moment right here !

>>>>>In fact, it’s possible that if their attorneys had counseled them to try mooting the case, they would have been in breach of their ethics – attorneys are not allowed to advise their clients to undertake deceptive measures.<<<<<<

"Deceptive measures" ? What was really "deceptive" was the new board members' phony campaign promise to get rid of the ID policy and try to save the school district's money !

>>>>>In Buckhannon, the state government was allowed to escape liability for attorney fees just by repealing the challenged statute.
Yes---because it was a suit in equity. The standards were different.<<<<<<

You are really hung up on this "damages" thing. "Damages" were not a significant factor in the Dover case. The Dover suit was not a suit for "damages" -- it was just a suit over an alleged violation of the Constitution's establishment clause.

>>>>>Except that one had money damages and could not have been mooted. <<<<<

Do you honestly believe that the school board would not have gladly given the plaintiffs their lousy $11 if that had been the sole remaining issue? If, as you say, the issue of damages was the sole difference between the Dover and the Buckhannon cases so far as mooting the case by repeal of the offending enactment was concerned, then the school board could easily have eliminated that difference by paying the plaintiffs their lousy $11. The sole basis of your arguments now, the "damages" issue, is without foundation.

I have seen and participated in a lot of debates and discussions about the board's failure to repeal the ID policy in December, and I have seen no one -- no one else raise this supposedly "obvious" issue of damages.

>>>>>There was no evidence whatsoever that the statute was unlikely to be reinstated -- and if such reinstatement was unlikely in Buckhannon, there would be other cases where reinstatement might be a stronger possibility.
You have the presumption backwards, and you haven’t put the case in context. None of this matters, though, because it’s not relevant to a suit for damages.<<<<<<

What "presumption" do I have backwards ? Please be specific. And as I said, you are really hung up on this "damages" thing. As I said, the Dover suit was not a "suit for damages" -- it was just a suit over an alleged violation of the Constitution's establishment clause. The "damages" were not a significant part of the suit -- obviously.

>>>>>You have shown no reason why the courts should have treated the Dover school board in Kitzmiller any differently from how they treated the West Virginia government in Buckhannon in regard to declaring the case moot in response to a repeal of the challenged enactment.

Read footnote 10 again. They should have treated the board differently because it was not the state, and susceptible to money damages.<<<<<

So you are saying that if the Ohio Board of Education had been sued over the Ohio evolution lesson plan and then decided late in the trial that it looked like the plaintiffs were going to win, then the Ohio BOE as a state rather than a local agency could have mooted the case just by withdrawing the plan, just like the West Virginia government mooted the Buckhannon case by repealing the challenged statute. Your nitpicking distinctions between state and local governments make no sense at all.

>>>>>No, I think I win the debate because the law is unambiguous.<<<<

You are inventing ambiguities in the law that simply do not exist.

>>>>>>I do have to say that I enjoy these exchanges. It confirms my opinion of the ID-camp: damned ignorant, and damned proud of it.<<<<<<

There you go with that "ignorant" stuff again, you stupid, fatheaded, feeble-minded cretin.

When the new school board members are up for reelection, let's see them try to defend themselves by the ridiculous arguments you are making here.

You have only dug a deeper and deeper hole for yourself by not quitting this debate before you got this far behind.

==============================================

W. Kevin Vicklund said ( 5/05/2006 04:52:11 AM ) --

>>>>>>Actually, Colin, in item c) in the original complaint's Prayer for Relief, the plaintiffs requested nominal damages without specifying a dollar amount (however, since nominal damages are normally $1, most people would assume nominal=$1).<<<<<

Sorry, Kevin, the legal definition of "nominal damages" does not specify a dollar amount. As I told Colin, nominal damages are supposed to be just a silly token of vindication in a judgment on the merits that provides no serious form of relief. Nominal damages had no proper place in the Dover lawsuit -- in fact, I think that nominal damages have no proper place anywhere.

Kevin said --
>>>>>Of course, it is not necessary to specify a dollar amount for it to be considered damages.<<<<<

If the plaintiffs claim that a case is not yet moot because damages have not been paid, then they had darn well better specify a dollar amount.

>>>>>Aside from that, excellent analysis, Colin. <<<<<

Kevin, if this is your idea of an "excellent" legal analysis, then I know that I would be wasting my time debating with you about the points I raised in my post, "Traipsing into breathtaking inanity -- absurd rulings in Dover Intelligent Design case." Actually, I should know this from my past experiences in debating with you.

Friday, May 05, 2006 1:36:00 PM  
Anonymous Anonymous said...

The big question that no one has answered yet is what good reason the Dover school board had for not repealing the ID policy at the December 5 meeting.

The agenda was set by the old board before the meeting and before the new board was sworn in.

The board's standard practice was and is to set the agenda a week before the board meeting. The new board did the right thing, they moved to put it on the agenda for the next meeting.

I love the way IDers complain because the new Dover board followed good, open-government operating procedures. It makes clear your hypocrisy.

Friday, May 05, 2006 2:25:00 PM  
Anonymous colin said...

The big question that no one has answered yet is what good reason the Dover school board had for not repealing the ID policy at the December 5 meeting. And even providing such a reason now (which you have not) could not exonerate the board, because that reason could not have been a factor in the board's decision.


Are you illiterate, or merely a pseudointellectual masochist? The law clearly states that there is no way that the board could have mooted the case and avoided paying the plaintiffs’ fees. Your bizarre fantasies aside, the board was not required, legally or ethically, to waste time on actions that could not, under any circumstances, have had an effect on the outcome of the case. In fact, there is an argument to be made that it would be unethical to make a sham mootness argument in order to avoid lawfully incurred attorneys’ fees. This is a prospective analysis. We know what the board knew, and why it did what it did—because only a ranting crank would have made any other choice.

Nor do the cases you cite say what you want them to, or have any impact on your argument other than to show that you really don’t have the slightest clue. A battle over experts? Affirmative action scrutiny? What makes you think those cases are at all relevant to a mootness/fees analysis, other than skimming them for short phrases that sound relevant when read out of context? Even as internet law cranks go, you’re skimming the bottom of the barrel—at least tax protestors know how to pick topically relevant cases.

Don't cite random, irrelevant passages. Make your argument, then cite to the passage that supports it.

And even if your arguments had some merit, they could not exonerate the Dover school board even if the board had known about them, because the courts might have reached conclusions different from yours.

Perhaps you really are illiterate. The Dover board has attorneys, whom it surely consulted. Those attorneys would never have told the board that they could moot the case, because any first-year student could do the research that would show that they could not. Nor would the courts have reached a different conclusion—this is not a controversial area of law. It is well-settled, and your utter, abject ignorance of the law does not alter its finality one iota. Read the cases. Buckhannon clearly says that a suit for damages cannot be mooted by the defendant’s actions, at least at so late a date. Farrar clearly says that even nominal damages suffice. The Kitzmiller decision clearly shows that the plaintiffs included a demand for nominal damages. Have I lost you along the way? Would a Chick-tract style analysis help, with little cartoon people holding signs?

>>>>>Here is where actual knowledge comes in handy---an “action at law” is a request for damages, while a “suit in equity” is a request for an injunction.<<<<<<
That is bullshit. When the law means "damages," the law says "damages," and when the law means "injunction," the law says "injunction." Laws are not written in a secret code consisting of buzzwords.


You are so dumb that it hurts. Law is a sophisticated field that builds on hundreds of years (at least) of developments. You can't dispose of that history by closing your eyes and sticking your fingers in your ears. Here, again, is the short version: When the legal system unified courts of law and courts of equity, it preserved the terminology because those terms matter in analyses just like this one. There is a very real difference between suits at law and those at equity, as the taxpayers of Dover will tell you.

Perhaps your fingers are broken? Is that why you cannot read to educate yourself? Or do you intend to require me to teach you, bit by bit, what anyone with an internet connection could find out in ten minutes? From wikipedia article on Equity:
In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forebear from acting. . . . If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal . . . . On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity.

And there is an outline here that might (but probably won’t) enlighten you:
http://www.lectlaw.com/files/lws65.htm

The Kitzmiller plaintiffs requested both legal and equitable remedies. I repeat myself - you cherish your ignorance. You adore it, like a precious thing, and protect it against any knowledge or education that might threaten it. I truly enjoy flattening your stupendous idiocy like this—a man in my line of work rarely gets to be so completely, consistently right, because so few people in the professional world are as enthusiastically ignorant as you.

Damages are allowed under Sections 1983 and 1988 because there may actually be a monetary loss or some irreversible harm involved. But such was not the case in Dover -- the award of just $1 per plaintiff shows that.

Are you frightened of words, or education in general? Do you actively resist anything that challenges your preconceptions, no matter how benighted the ignorance that spawned them? Nominal damages are a very, very common thing in 1983 suits. If you have Westlaw, use it to search for “nominal damages” /p 1983 in your jurisdiction, and read. Otherwise, use Google to search, and read. Who do you think you’re convincing by making things up as you go along?

>>>>>>Was the monetary damages claim just a gimmick to try to prevent the case from being declared moot ?

Yes, it is. <<<<<

Aha ! The truth is out ! . . . [Y]ou just admitted that they were a gimmick in the Dover case !


Speaking of making things up, did you think I wouldn’t notice that you omitted a sentence in that little quote? Now, I’m sure that works great at Uncommon Descent – it’s right out of the Dembski-Designed Playbook. But you have a more critical audience here (for which I’m actually impressed, I like your open-field approach to comments). You cut the sentence just before “Yes, it is,” which read, “Please forget about the monetary damages claim -- it is not relevant to the Dover case.” You should use ellipses when you delete substance from quotations, otherwise it makes you look extraordinarily dishonest. Come on now - I clearly don’t have a very high opinion of you, but I didn’t think you were a liar until now.

But let’s pretend that I had agreed with your statement. What do you mean by “gimmick?” That the tactic was dishonorable or underhanded? I disagree, because nominal damages are a common feature of civil rights suits, and a hugely critical feature of the American Rule. This is one of the situations they’re intended to create - the idea is that a person whose rights have been infringed upon shouldn’t be burdened with the cost of the adjudication. I think it was appropriate, honorable, and right to ask for nominal damages, even if the sole purpose was to qualify for fee-shifting and avoid mootness. But, so that you don’t misquote me again, I’ll add that I don’t think that was the sole reason; at the very least, there is a large symbolic value to nominal damages.

The one thing that any intellectually honest person can agree with is that the Kitzmiller plaintiffs were legally entitled to request, and obtain, nominal damages. Naturally, I expect you to disagree.


Nominal damages are obviously just a silly token of vindication that are sometimes granted when the court reaches a judgment on the merits but provides no serious form of relief (i.e., the court does not order that anything be done or award substantial damages).
I think we’ve established that you are perpetually clueless, and don’t have any idea what nominal damages are about. Perhaps you should start by studying the differences between the American and Continental Rules in regards to who bears costs, and what the exceptions are to the American Rule that mitigate its disadvantages. I’m just about done compiling reading lists for you, though, so you’ll have to rely on Google. Or, you know, school. Or a library. Or an educated friend. Or C-SPAN. Or a civics teacher. Or anything other than your imagination, which seems to be your only resource to date.

For the record, plaintiffs often request both nominal damages and significant economic damages. That might help you start to understand the significance of nominal damages.

Nominal damages are not necessary to identify a prevailing party -- the official opinion can simply expressly identify a prevailing party.

Are you sure? Any, you know, evidence or citation to show that?

Nominal damages serve no useful purpose and I think that they are frivolous and stupid. Anyway, nominal damages were obviously inappropriate in the Dover case because a serious form of relief was provided.

Yes, but you are stupendously ignorant. The entire American legal establishment disagrees with you, and has for very many years. Your opinion of nominal damages, even if it had a basis in fact, experience, knowledge or insight, wouldn’t change the fact that the Kitzmiller plaintiffs did ask for them, as they were legally entitled to do, and that request in and of itself, even before the judge granted them, would have kept the defendants from mooting the case. Again, for the hundredth time, read Buckhannon and Farrar. Moreover, a “serious form of relief” does not obviate nominal damages. Especially when that relief was equitable, because law and equity are two different things. Plaintiffs are entitled to ask for, often do request, and are often granted both. Read to learn these things - the internet has lots of resources, even if you’re unable to get to a library, school, or book store.

You are really hung up on this "damages" thing. "Damages" were not a significant factor in the Dover case. The Dover suit was not a suit for "damages" -- it was just a suit over an alleged violation of the Constitution's establishment clause.

Moron. Read the decision. The plaintiffs requested nominal damages. Nominal damages are damages. Is there some way I can make it simpler for you?

Do you honestly believe that the school board would not have gladly given the plaintiffs their lousy $11 if that had been the sole remaining issue?

Why would the plaintiffs have accepted that? They wanted the decision in order to prevent the next board from selling their children’s education out to religious extremists. And since they would not have accepted the offer, the case could not have been mooted.

I have seen and participated in a lot of debates and discussions about the board's failure to repeal the ID policy in December, and I have seen no one -- no one else raise this supposedly "obvious" issue of damages.

Your idea of “participating in a debate” is to make things up and insist that they are true no matter what anyone else says or tries to show you. It’s no surprise that you haven’t been paying attention.

Here is a commentor at UD, of all places, slipping through the filter with actual information. Look for BarryA and his citation to, yes, one of those cases that seems to overload your rigidly closed mind, Farrar.

Here’s a PT thread that raises the damages/fees issue. Search down the page a bit.

There is another reason that you haven’t seen this argument - it’s not necessary. The voluntary cessation doctrine covers this case perfectly. But that requires thinking and analysis that are beyond your intellectual honesty. I’ve been focusing on damages because it’s black-and-white, and easier for a layperson to understand if they’re willing to read the cases and learn the facts. I suppose that exempts you. In context, since you seem unclear, this is all back-stopping; the actual argument in court, if this had gotten to that point, would almost certainly have started and stopped with voluntary cessation. The damages issue is sufficient on its face to dispose of the issue, but superfluous to practical requirements.

What "presumption" do I have backwards ? Please be specific.

In fact you didn’t have it backwards. You wrote “unlikely,” which I read as “likely.” I apologize. You are still wrong, and a dope. Buckhannon does not apply, as the case itself says, because this was a matter of damages. Read the case. Footnote 10, and thereabouts.

And as I said, you are really hung up on this "damages" thing.

Yeah. So was Chief Justice Rehnquist in Buckhannon. That’s the thing about law—facts matter. Crazy internet ranting, however, is wide open to games of pretend, so at least you have something to fall back on.

So you are saying that if the Ohio Board of Education had been sued over the Ohio evolution lesson plan and then decided late in the trial that it looked like the plaintiffs were going to win, then the Ohio BOE as a state rather than a local agency could have mooted the case just by withdrawing the plan, just like the West Virginia government mooted the Buckhannon case by repealing the challenged statute. Your nitpicking distinctions between state and local governments make no sense at all.

That’s because you are a moron. The law makes a very big difference between state and sub-state governments. Where can you read that? Oh, I don’t know... how about footnote 10 in Buckhannon? Lots of big words, though... better read it twice to be sure.

As for whether the Ohio BOE could moot the case... no, pretty clearly not, because that would fall under the voluntary cessation doctrine. But assuming that doctrine didn’t exist and the only question was whether the case could fall under Buckhannon, I don’t know. I don’t know how the Ohio State BOE is organized, or what the analysis would look like. It might have an obvious answer to an expert or someone experienced in that field of law, or it could be a sticky question that the court would have to wrestle with. I have no idea, because that sort of administrative law seems incredibly boring to me. In the real world, it wouldn’t come up, because we have the voluntary cessation doctrine, which Kansas clearly shows is necessarily applicable to these cases.

>>>>>No, I think I win the debate because the law is unambiguous.<<<<

You are inventing ambiguities in the law that simply do not exist.


Read that one again, champ.

>>>>>>I do have to say that I enjoy these exchanges. It confirms my opinion of the ID-camp: damned ignorant, and damned proud of it.<<<<<<

There you go with that "ignorant" stuff again, you stupid, fatheaded, feeble-minded cretin . . . You have only dug a deeper and deeper hole for yourself by not quitting this debate before you got this far behind.


Man, you’ve got me in the crushing grip of logic, there. Read the cases. Read a book. Go back to school. You’re sadly in need of some sort of elementary civics refresher - you are terminally, fatuously emptyheaded on all questions of law that I’ve ever seen you approach.

As I told Colin, nominal damages are supposed to be just a silly token of vindication in a judgment on the merits that provides no serious form of relief. Nominal damages had no proper place in the Dover lawsuit -- in fact, I think that nominal damages have no proper place anywhere.

Yes, but fortunately for our great republic, your fevered and overworked imagination has no place in the corridors of law. We still rely on books, cases, facts, and logic. I can supply definitions for those terms if you require them. Nominal damages still have the same tremendous impact they have always had in American law, and you are still scraping the bottom of the barrel as an online crank.

>>>>>Of course, it is not necessary to specify a dollar amount for it to be considered damages.<<<<<

If the plaintiffs claim that a case is not yet moot because damages have not been paid, then they had darn well better specify a dollar amount.


Really? Do you have a citation for that? Or are you just making things up again? This is where law differs from Intelligent Design - you can’t invent facts and make them true by wishing. Sooner or later, you need to support your arguments.

Kevin, thank you for your comment. I feel a little bit guilty slumming here; it’s like picking on a child. (Speaking of which, I’m not, am I? I’m going to feel like a cad if this guy is 13 years old.) But I love it so, to steal a line from Larry’s prototype.

Friday, May 05, 2006 3:22:00 PM  
Anonymous Anonymous said...

Kevin, thank you for your comment. I feel a little bit guilty slumming here; it’s like picking on a child. (Speaking of which, I’m not, am I? I’m going to feel like a cad if this guy is 13 years old.)

Larry's 60 years old. Though sometimes I wonder if that's in dog years.

Friday, May 05, 2006 4:45:00 PM  
Anonymous Anonymous said...

jesus h. christ, colon

write a fuckin' book next time

moron

Friday, May 05, 2006 6:20:00 PM  
Blogger Larry Fafarman said...

Response to post by Colin ( 5/05/2006 03:22:32 PM ) --

I am really enjoying this now! You have become really desperate in your futile efforts to defend your preposterous arguments. This is a real David and Goliath situation -- a mere pro se litigant like myself up against an attorney -- and I am making you look completely ridiculous !

>>>>>Are you illiterate, or merely a pseudointellectual masochist? The law clearly states that there is no way that the board could have mooted the case and avoided paying the plaintiffs’ fees.<<<<<

But the state of West Virginia did it in the Buckhannon case -- and I showed that the Buckhannon precedent is applicable to the Dover case!

>>>>>>In fact, there is an argument to be made that it would be unethical to make a sham mootness argument in order to avoid lawfully incurred attorneys’ fees.<<<<<<

"Sham" ? LOL The West Virginia government made such a "sham" argument in the Buckhannon case -- and won in the US Supreme Court !

>>>>>Nor do the cases you cite say what you want them to, or have any impact on your argument other than to show that you really don’t have the slightest clue. A battle over experts? Affirmative action scrutiny? What makes you think those cases are at all relevant to a mootness/fees analysis,<<<<<<

I cited those two cases (Edwards and Bakke) just to support my common-sense claim that "Monday morning" arguments -- like those you are presenting here -- are too late, regardless of how good they may be (and yours aren't).

>>>>>And even if your arguments had some merit, they could not exonerate the Dover school board even if the board had known about them, because the courts might have reached conclusions different from yours.
Perhaps you really are illiterate. The Dover board has attorneys, whom it surely consulted. Those attorneys would never have told the board that they could moot the case, because any first-year student could do the research that would show that they could not.<<<<<<

The former board member who made the proposal presented a written analysis prepared by an attorney. Not having seen the analysis, I cannot comment on its merits. The analysis was also presented at the mid-November board meeting, so the board's own attorneys had plenty of time to review the analysis before the Dec. 5 meeting and find any faults in it. Either the board's own attorneys acted negligently by failing to review the analysis, or the analysis had some merit because the board's own attorneys could find no fault in it. Anyway, even if the proposal was a longshot, it was still worth a try. And the new board members had no reason to keep the ID policy anyway -- they had campaigned on a promise to get rid of it.

>>>>>Buckhannon clearly says that a suit for damages cannot be mooted by the defendant’s actions, at least at so late a date.<<<<<<

Buckhannon clearly says the opposite. Also, Buckhannon said nothing about what stage the suit was at when the suit was mooted by the defendant's action. All we know is that the plaintiff must have accumulated substantial legal expenses by that time, since the plaintiff sued for recovery of those expenses.

>>>>> When the law means "damages," the law says "damages," and when the law means "injunction," the law says "injunction." Laws are not written in a secret code consisting of buzzwords.
There is a very real difference between suits at law and those at equity, as the taxpayers of Dover will tell you. <<<<<

So the ordinary taxpayers of Dover are now big legal experts ! LMAO The terms "suits at law" and "suits at equity" now appear to be obsolete or obsolescent, because a legal dictionary defines "court of law" as follows: any tribunal within a judicial system. Under English common law and in some states it was a court which heard only lawsuits in which damages were sought, as distinguished from a court of equity which could grant special remedies. That distinction has dissolved and every court (with the exception of federal bankruptcy courts) is a court of law. Probably the only reason why 42 USC § 1983 has the terms "action at law" and "suit in equity" is that it comes from a very old law, the the Civil Rights Act of 1871. Today that kind of antiquated terminology is just high-falutin legalese. Anyway, I never denied that plaintiffs could sue for damages under 42 USC § 1983, so at least we agree on something.

>>>>>>Was the monetary damages claim just a gimmick to try to prevent the case from being declared moot ?

"Yes, it is."

Aha ! The truth is out ! . . . [Y]ou just admitted that they were a gimmick in the Dover case !

Speaking of making things up, did you think I wouldn’t notice that you omitted a sentence in that little quote?<<<<<<<

Sorry, I misunderstood. I thought that your statement "Yes it is" referred to my question of whether the monetary damages claim was a gimmick. I did not think that you were dumb enough to say "Yes it is" in response to my statement, “Please forget about the monetary damages claim -- it is not relevant to the Dover case.” Now I know better.

>>>>>What do you mean by “gimmick?” That the tactic was dishonorable or underhanded?
<<<<<

You got it ! Good for you !

You have been using this "nominal damages" gimmick to make a phony argument that state government entities but not local government entities can moot a case just by repealing the offending action. That makes no sense at all. As I said, if the demand for nominal damages was a barrier to mootness in the Dover case, the school board could have fixed that problem very easily just by giving the plaintiffs their lousy $11.

>>>>>This is one of the situations they’re intended to create - the idea is that a person whose rights have been infringed upon shouldn’t be burdened with the cost of the adjudication.<<<<<

That is absolutely ridiculous. Nominal damages do not -- or are not supposed to -- have anything to do with the cost of adjudication. As I said, nominal damages are supposed to be just a silly token of vindication where there is a judgment on the merits but no serious form of relief.

>>>>>I’ll add that I don’t think that was the sole reason; at the very least, there is a large symbolic value to nominal damages.<<<<<<

Only in the minds of silly people. Nominal damages are a kind of joke, like booby prizes.

>>>>>Nominal damages are not necessary to identify a prevailing party -- the official opinion can simply expressly identify a prevailing party.
Are you sure? Any, you know, evidence or citation to show that?<<<<<

Yes, I'm sure. I don't need -- and I am not likely to find -- any evidence or citation to support a statement of something obvious.

>>>>>The one thing that any intellectually honest person can agree with is that the Kitzmiller plaintiffs were legally entitled to request, and obtain, nominal damages. Naturally, I expect you to disagree.<<<<<

Just because they were legally entitled to it does not mean that it was not silly.

>>>>Do you honestly believe that the school board would not have gladly given the plaintiffs their lousy $11 if that had been the sole remaining issue?
Why would the plaintiffs have accepted that? They wanted the decision in order to prevent the next board from selling their children’s education out to religious extremists.<<<<<

Because that is what they asked for in the complaint -- nominal damages ! That is supposed to be $1 for each plaintiff -- right ?

I am sure that the plaintiffs in the Buckhannon case also wanted a decision and also wanted an attorney fee award. I am sure that they wanted to prevent the next legislature from re-instating the "self-preservation" law. But what plaintiffs want and what plaintiffs get are often two different things.

>>>>>Here is a commentor at UD, of all places, slipping through the filter with actual information. Look for BarryA and his citation to, yes, one of those cases that seems to overload your rigidly closed mind, Farrar.<<<<

Your commenter on UD said, "Also, even if the judge agreed the case for a declaratory judgment was no longer valid, he could award nominal damages, and the Supreme Court has held that nominal damages can suffice to make the plaintiff a prevailing party for purposes of entitlement to attorneys fees.".
There can be no award of nominal damages without at least a declaratory judgment. And your commenter is actually making the absurd suggestion that judgments on the merits should be made just for the purpose of making litigants eligible for attorney fee awards.

>>>>There is another reason that you haven’t seen this [nominal damages] argument - it’s not necessary. The voluntary cessation doctrine covers this case perfectly.<<<<<<

The voluntary cessation doctrine covered Buckhannon perfectly, too.

>>>>>>Your nitpicking distinctions between state and local governments make no sense at all.
That’s because you are a moron. The law makes a very big difference between state and sub-state governments. Where can you read that? Oh, I don’t know... how about footnote 10 in Buckhannon?<<<<<

All footnote 10 in Buckhannon says is: "Only States and state officers acting in their official capacity are immune from suits for damages in federal court......... Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State." But the Buckhannon opinion never said or implied that Buckhannon would not have applied to the Dover case if the Dover school board had both repealed the ID policy and paid the nominal damages prior to judgment. The issue here should be whether or not the defendant has satisfied all of the plaintiff's demands outside of court, and not whether or not those demands include damages (nominal or otherwise). Actually, Buckhannon should apply with even greater force to out-of-court damage payments because they -- unlike repeal actions -- are conclusive.


>>>>>As for whether the Ohio BOE could moot the case... no, pretty clearly not, because that would fall under the voluntary cessation doctrine.<<<<

"Pretty clearly not," and not "clearly not" ? It looks like you are not so confident anymore.

You have not explained why the voluntary cessation doctrine should apply in my hypothetical Ohio case but not in the Buckhannon case, where the Supreme Court did not apply the doctrine.

>>>>>> But assuming that doctrine didn’t exist and the only question was whether the case could fall under Buckhannon, I don’t know. <<<<<

That's right -- you don't know. You don't know nuthin'.

>>>>If the plaintiffs claim that a case is not yet moot because damages have not been paid, then they had darn well better specify a dollar amount.
Really? Do you have a citation for that?<<<<<<

As I said, I do not need -- and I am not likely to find -- citations supporting a statement of something obvious.

>>>>>I feel a little bit guilty slumming here; it’s like picking on a child.<<<<<

Yeah -- like Goliath picking on David. You have really painted yourself into a corner.

==============================
Anonymous said ( 5/05/2006 06:20:32 PM ) --

>>>>>jesus h. christ, colon

write a fuckin' book next time

moron <<<<<

Well, Anonymous, how would you like to have to respond to this guy, like I had to? I had to nearly write a fuckin' book myself, just responding to him.

Friday, May 05, 2006 11:26:00 PM  
Blogger Larry Fafarman said...

Anonymous said ( 5/05/2006 02:25:22 PM ) --

>>>>>The big question that no one has answered yet is what good reason the Dover school board had for not repealing the ID policy at the December 5 meeting.

The agenda was set by the old board before the meeting and before the new board was sworn in.<<<<<

I already went over this in my opening comment. You are making me unnecessarily repeat myself.

All of the new board members except one (whose election was in dispute) were sworn in on Dec. 5, so they could have taken action.

Pennsylvania law does not require advance notice of items that are discussed or voted on by a public agency. Also, Pennsylvania law authorizes the scheduling of special or emergency meetings. Anyway, I presume that a lot of people expected the Dover lawsuit to be a hot topic at the Dec. 5 meeting -- the lawsuit had been a local obsession for at least a year and was the very reason why the new members were elected. The former board member had presented his proposal at the November meeting and all or several of the new members were aware of it then, so the proposal was not something that was suddenly sprung on them.

>>>>>The board's standard practice was and is to set the agenda a week before the board meeting.<<<<

This was a genuine emergency, not a time for "standard practice." Everyone knew that the next meeting would be too late to try to moot the case by repealing the ID policy.

>>>>> The new board did the right thing, they moved to put it on the agenda for the next meeting.<<<<<<

No, the next meeting was too late.

>>>>>I love the way IDers complain because the new Dover board followed good, open-government operating procedures. It makes clear your hypocrisy.<<<<<<

No, the new board did not follow good operating procedures -- as I explained above, the new board could have handled the matter in a perfectly legal manner at the Dec. 5 meeting or at a special or emergency meeting in early December.

The new Dover school board members in fact acted very dishonestly -- they had campaigned on a promise to get rid of the ID policy and try to save the school district's money, and then did something completely different when they got into office.

Like Colin, you are full of crap, but at least he has the honesty to post his comments under a name.

Saturday, May 06, 2006 12:19:00 AM  
Anonymous Anonymous said...

This was a genuine emergency, not a time for "standard practice." Everyone knew that the next meeting would be too late to try to moot the case by repealing the ID policy.

It wasn't a "genuine emergency". Their legal counsel explained the law to them (unlike you, their counsel IS a lawyer). The case could not be mooted. Your entire theory here is based on either ignorance or outright dishonesty.

(when you first showed up at PT, I thought it was ignorance, I think it's apparent now that you're just a dishonest lying fuck)

Saturday, May 06, 2006 1:52:00 PM  
Blogger Larry Fafarman said...

Anonymous said...

>>>>>>This was a genuine emergency, not a time for "standard practice." Everyone knew that the next meeting would be too late to try to moot the case by repealing the ID policy.

It wasn't a "genuine emergency". Their legal counsel explained the law to them (unlike you, their counsel IS a lawyer). The case could not be mooted. Your entire theory here is based on either ignorance or outright dishonesty.<<<<<<

I don't give a shit if their counsel is a lawyer. The person who wrote the analysis supporting the proposal is also a lawyer. And I am entitled to my opinion even if I am not a lawyer. You think that everyone who disagrees with the opinions of judges and lawyers has a law degree or license ? Indeed, some non-lawyers have been judges.

In the Buckhannon case, the state of West Virginia both mooted a lawsuit and avoided payment of an attorney fee award just by repealing the offending statute -- something that the so-called "experts" have said is not possible. It is probable that the Dover school board's attorney was not aware of Buckhannon, for the following reasons: (1) if he had been aware of this case, he probably would have given the board different advice, and (2) the Supreme Court's Buckhannon opinion is probably not cited in discussions of the "voluntary cessation" doctrine because the opinion does not apply or even mention the doctrine.

Even if trying to moot the case by repealing the ID policy was a longshot, it was worth a try. Lawyers often cannot predict how the courts are going to rule. If lawyers took your attitude, they would never take cases that look difficult to win. It is winning the hard cases that distinguishes good lawyers from mediocre ones. The new school board members had no reason to keep the ID policy, anyway -- they had campaigned on a promise to get rid of it.

Furthermore, you look very foolish hiding behind a lawyer's opinion. You should either put up or shut up.

>>>>>(when you first showed up at PT, I thought it was ignorance, I think it's apparent now that you're just a dishonest lying fuck)<<<<<<

Name-calling is not going to win arguments for you, Anonymous.

BTW, did you post under "Anonymous" on PT ?

Saturday, May 06, 2006 3:56:00 PM  
Blogger Sean said...

Larry said:

I am really enjoying this now! You have become really desperate in your futile efforts to defend your preposterous arguments.

Colin's sounding more exasperated than desperate.

Oh well, each to their own.

Saturday, May 06, 2006 4:38:00 PM  
Blogger Larry Fafarman said...

Sean said...

>>>>>Larry said:
I am really enjoying this now! You have become really desperate in your futile efforts to defend your preposterous arguments.

Colin's sounding more exasperated than desperate. <<<<<<<

Desperate, exasperated, frustrated, etc., whatever you want to call it, I made him look like a stupid fool. I really like the way he waffled at the end, saying "no, pretty clearly not" and "I don't know." LOL As JAD would say, "I love it so !"

Saturday, May 06, 2006 7:54:00 PM  
Anonymous Anonymous said...

As JAD would say, "I love it so !"

Great quote. Because you, like JAD, are on the path towards being the greatist dickbrain on the internet.

So you'll get fame, such as it is.

I love it so!

Actually I wish you'd turn yourself in to the nearest 'tard intake facility, but I guess that won't happen.

Saturday, May 06, 2006 9:45:00 PM  
Anonymous Colin said...

I think you're right, anonymous; there is a point at which such extreme error is more attributable to dishonesty than stupidity, and Larry crossed it somewhere along the line. Possibly well before this post, since he has (to my knowledge) posted under multiple aliases to support himself, threatened to impersonate other posters, and, here, doctored my own posts and misquoted me in his replies. But this is the first time I've paid serious attention to his claims, so I hope I'll be forgiven for extending this farce a little longer. Rather than going paragraph by paragraph, as I have so far, I'll just set out the law. I think the point-by-point approach made it easier for Larry to lie in his responses; it's harder for the reader to understand what's going on when Larry says, “Oh, I've proven X” without being able to see what he's pretending to have shown.

So, to begin, Larry said:

“Defenders of the board's inaction have argued that the school district would have been liable for the plaintiffs' attorney fees even if the judge had declared the case to be moot as a result of a repeal of the ID policy. However, this argument is contradicted by the following ruling of the US Supreme Court...”

He then quoted language from Buckhannon. But his citation was dishonest. Buckhannon does hold that a defendant can moot a case by voluntarily ceasing the challenged action, but only in a case involving purely equitable relief. In other words, a defendant can moot a case under the Buckhannon rule if the only relief being sought is injunctive, because at that point there is no longer a live controversy. (This is overly simplistic – there is another, and also applicable, obstacle to mooting the case---the challenged policy was repeatable. This is also apparent from reading Buckhannon. But that's an argument that has already been discussed elsewhere, and even more susceptible to Larry's deceptive misquoting and case-mining. The Buckhannon analysis is what's at stake here, and easier to walk a layperson through.)

If the plaintiffs request damages, then a defendant cannot moot the case in this way. How do we know? Well, we read the case. “And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” I'll repeat that, because Larry doesn't read so good: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” (Sorry for not pinciting, but I'm at home and don't have Westlaw availalble; just using the Findlaw version.)

So, a request for damages means that a party cannot do what Larry thinks the board should have done. And the Kitzmiller judgment clearly says that the plaintiffs requested nominal damages. Are nominal damages sufficient? Larry says that they are not, but he is, of course, wrong, and probably lying. He himself cited a case that says that nominal damages are sufficient. Which case? Buckhannon, of course. “Our "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Hewitt v. Helms, 482 U. S. 755, 760 (1987). We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992).”

(The plaintiffs in Farrar actually didn't get fees. That's because they requested more substantial relief, but didn't get it; the Court held that because they achieved negligible success in the suit, they deserved negligible fees. That's not the case in Kitzmiller, where the plaintiffs received the entire remedy they requested.)

So, to sum up, a party that requests damages cannot moot a case through its own actions under Buckhannon. That is because a request for damages, even nominal damages, is a request to be made whole for a harm in the past---there is still a live controversy, meaning the court has jurisdiction. A request for nominal damages suffices under Farrar. What's left? Well, not much. That's it. A request for damages makes Buckhannon irrelevant. The plaintiffs requested damages. Case closed.

Now, one of Larry's spectacularly ignorant arguments is that the defendants could just have paid the plaintiffs $11. Could they have? Probably. But why would the plaintiffs accept? They didn't want $11, they wanted a court order, and accepting such a settlement could have (potentially, albeit probably not given the repeatability doctrine) allowed the board to weasel out of the suit. The nominal damages were an important part of the procedural process, and no settlement offer would have sufficed. Nor are defendants obligated to make settlement offers that they know will (A) not be accepted, and (B) will not actually moot the case. The board's lawyers---even the Thomas Moore hacks---were not as stupid as Larry is, and knew that they would not be able to escape the fees even if the damages claim evaporated. Larry would know this if he read the cases he cites, but he has a bad case of pro se syndrome. He treats cases like magical talismans, which can mean whatever he wants them to mean if he talks loudly enough and doesn't look behind the textual curtain. Unfortunately, law, like biology, relies on a more empirical method. That is why the claims of idiots and creationists wither in the face of an honest look at the facts.

Speaking of which, let's look at some more of Larry's claims! I so enjoy the didactism.

First, Larry claims that there is no distinction between legal and equitable remedies. Is he right? No. Wikipedia is not the best source in the world, but it's fine for simple, easy, basic facts that any college student should know. From the “Legal Remedy” article: “In Commonwealth common law jurisdictions and related jurisdictions (eg. the US), the law of remedies distinguishes between a legal remedy (eg. a specific amount of monetary damages) and an equitable remedy (eg. injunctive relief or specific performance).” Read a book, Larry. Or at least a website.

Second, Larry claims that “Nominal damages are a kind of joke, like booby prizes.” Speaking of booby prizes, you win one – the dumbest thing I've read since the last sentence you wrote. Nominal damages are important for symbolic reasons, and because they make the plaintiff a prevailing party. Why does that matter? Why, for fees, of course! And also punitive damages in some cases, but not here. Why is that so dumb? Why, because even Larry can read Farrar . . . Oh. I forgot about whom we were talking. Perhaps he can't read Farrar, or just won't.

Third, Larry says “I don't need -- and I am not likely to find -- any evidence or citation to support a statement of something obvious.” The problem, dear Larry, is that you are a maroon. You are stunningly ignorant of even the most basic legal principles, and you think that your common sense trumps all settled law. But your common sense is neither. What you see as “obvious,” I see as a sure sign of a man with a head stuffed with straw. Law doesn't proceed by means of divination or games of pretend. If you want to make a novel argument, such as that if “plaintiffs claim that a case is not yet moot because damages have not been paid, then they had darn well better specify a dollar amount,” then you should either support it or be prepared for critical readers to dismiss you out of hand.

Third, Larry declaimed, “Furthermore, you look very foolish hiding behind a lawyer's opinion. You should either put up or shut up.” “Hiding behind a lawyer's opinion” is what people do when there's legal question on the table. Just like, when the power goes out, they “hide behind” an electrician's opinion. And when taxes are due, they “hide behind” their accountant's opinion. If the Dover board had “hidden behind” their lawyers' opinion, they wouldn't be in this mess---my understanding is that the reason the board's insurance didn't cover the fees award is that the original board disregarded their attorneys' advice and allowed the Thomas Moore Center to take them to court. By disregarding their counsel, they lost their insurance coverage, and, of course, as their counsel (and everyone else) had predicted, the case itself.

Fourth, Larry wrote, “I don't give a shit if their counsel is a lawyer. The person who wrote the analysis supporting the proposal is also a lawyer. And I am entitled to my opinion even if I am not a lawyer. You think that everyone who disagrees with the opinions of judges and lawyers has a law degree or license?”

This is the first correct thing you've written so far. You are entitled to your opinions. But those opinions are dumb. Just as dumb as my opinions would be if I walked into an electrical engineer's office and said, “No, those wires should be made out of rubber. Rubber bends better than metal, so it's probably a pretty good conductor.” It's nice to think that anyone can sit down and make a valid legal argument, but law is a specialized field. It requires some knowledge, or at least a willingness to learn. Again, I'd point out Ed Brayton. He's not a lawyer, but he's got a fine mind and an insightful voice on legal matters. Why? Because he reads. He thinks. He doesn't just make things up and insist that they're true because he wants them to be true. You rely on fantasy and deceit. I don't look down on you because you're not a lawyer. I don't even look down on you because you're ignorant. I look down on you because you nurture your ignorance, and most especially because you try to spread it.

And that's why I keep commenting here. I think that Larry has a goal, although I don't know what it is. To encourage future creationist school policies? To support ID-creationists generally? I don't know. But he lies to advance that agenda. He wants people to think that the Dover board acted improperly, so he's invented a legal argument that he says shows that it could have avoided the fees award. He's wrong, and even reading one case - Buckhannon, which he himself cited – would show that. But being seen as right is Larry's goal, not actually being right. So instead of reading the case and saying, “Ah. That doesn't apply in the way that I thought it did,” he lies. He says, “Oh, I've shown that Buckhannon applies. Now lets talk about something else.” But I love law, big nerd that I am, and I don't like seeing people lie about it. Especially not when they're defending an assault on children's education.

I guess my point is that if there are any interested readers out there, check it out for yourself. Read the case. Read what Rehnquist had to say about damages. See if Larry is telling the truth... and remember it next time you see him make a legal claim. I started by saying that there is a line between ignorance and dishonesty. Larry has crossed it, and you should scrutinize his claims closely in the future.

Finally, I'd like to ask, probably rhetorically, that Larry retract his accusation that the author of "The Discovery Institute really needs better Lawyers" “falsifies the decision in Buckhannon.” That article says, as quoted by Larry, that "the court specifically upheld the [plaintiff's] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." That is entirely correct; Buckhannon does hold that court-enforced settlements and other court orders suffice. It is dishonest and underhanded to accuse the author of that article of lying by misrepresenting a case that you know that most of your readers won't examine for themselves. But I am calling you out: you have lied about what Buckhannon says, and you lied when you accused that author of misrepresenting the case. You should apologize to him. I won't hold my breath, because I think you've already demonstrated that you don't have that much integrity.

Sunday, May 07, 2006 2:14:00 AM  
Blogger Larry Fafarman said...

Reply to comment by Colin ( 5/07/2006 02:14:27 AM ) --

Whew ! Just when I thought I was finally rid of Colin's bombast, I get another one of his harangues. Answering his repetitious nonsense is taking time away from really worthwhile things.

For reasons I have already stated, this "Monday morning" debate is really irrelevant, but here goes.

>>>>>Possibly well before this post, since he has (to my knowledge) posted under multiple aliases to support himself, threatened to impersonate other posters, and, here, doctored my own posts and misquoted me in his replies.<<<<<

I said that I posted under multiple names on Panda's Thumb to help avoid unjust bans and deletions. I threatened to impersonate other commenters there for the same reason. There are impersonators on this blog where there is no excuse to impersonate because no one here is threatened with banning or deletion.

I have not "doctored" your posts (to do that I would have to impersonate you), and where I inadvertently misquoted you, I made a retraction.

>>>>>Buckhannon does hold that a defendant can moot a case by voluntarily ceasing the challenged action, but only in a case involving purely equitable relief........(quoting Buckhannon) "petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” (my emphasis)<<<<<<

You missed the key statement, "so long as the plaintiff has a cause of action for damages." If the defendant pays or agrees to pay the demanded damages outside of court, then the plaintiff no longer has a cause of action in regard to a claim for damages. And I pointed out that Buckhannon would apply with even greater force in regard to out-of-court payment of damages, because the payment of damages is irreversible and conclusive, in contrast to the reversibility of voluntary cessation.

Under your line of reasoning, any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered -- that is absolutely absurd and you know that it is absurd.

>>>>>The plaintiffs in Farrar actually didn't get fees. That's because they requested more substantial relief, but didn't get it; the Court held that because they achieved negligible success in the suit, they deserved negligible fees.<<<<<

Like I said, nominal damages are a joke. Apparently in Farrar, nominal damages or unsubstantial damages were not considered to be sufficient justification for an award of attorney fees. And the fact that the plaintiffs in Farrar did not get a fee award despite getting nominal or other unsubstantial damages totally defeats your claim that one of the purposes of nominal damages is to establish eligibility for a fee award !

Also, there is no reason why nominal damages should be a pre-requisite for punitive damages.

>>>>>That is because a request for damages, even nominal damages, is a request to be made whole for a harm in the past---there is still a live controversy, meaning the court has jurisdiction.<<<<<

The plaintiff cannot be made whole by nominal damages. You are saying that a lawsuit can be justified by harm that can be completely undone by the award of a mere $1 -- that is absurd.

>>>>Larry claims that there is no distinction between legal and equitable remedies.<<<<

I never made any such claim. I only said that the language in 42 USC § 1983, "action at law" and "suit in equity," is antiquated (today we don't have separate courts of law and equity except for bankruptcy court) and today such language in a law is considered to be high-falutin legalese (section 1983 is from an 1871 law). Today we just have "lawsuits."

>>>>Nominal damages are important for symbolic reasons, and because they make the plaintiff a prevailing party.<<<<

Wrong. Even a declaratory judgment can expressly designate the prevailing party, if the party that has prevailed is not otherwise obvious from the text of the opinion.

>>>> If you want to make a novel argument, such as that if “plaintiffs claim that a case is not yet moot because damages have not been paid, then they had darn well better specify a dollar amount,” then you should either support it or be prepared for critical readers to dismiss you out of hand. <<<<<

OK, so the plaintiffs say, "we won't settle because we haven't been paid," and the defendants ask, "how much do you want," and the plaintiffs answer, "we don't know." Yeah, right.

>>>>You are entitled to your opinions. But those opinions are dumb. Just as dumb as my opinions would be if I walked into an electrical engineer's office and said, “No, those wires should be made out of rubber. Rubber bends better than metal, so it's probably a pretty good conductor.”<<<<

This is a straw man argument. People depend on an expert's opinion only when they themselves are unable to independently verify the opinion. If an EE told me that rubber is a better conductor than metal, I would find another EE.

>>>>I guess my point is that if there are any interested readers out there, check it out for yourself. Read the case. Read what Rehnquist had to say about damages. See if Larry is telling the truth.<<<<

In your legal briefs, do you make quotations and/or refer to specific pages of the opinions you cite, or do you just ask the reader to read the whole opinion ?

>>>>Finally, I'd like to ask, probably rhetorically, that Larry retract his accusation that the author of "The Discovery Institute really needs better Lawyers" “falsifies the decision in Buckhannon.”<<<<

I'll retract my accusation when hell freezes over. The very first paragraph of Buckhannon expressly contradicts the article.

You are nothing but a shyster and a pettifogger, and any judge who would agree with you ought to be impeached and removed from office.

Sunday, May 07, 2006 6:49:00 AM  
Anonymous VoiceInWilderness said...

> Larry's 60 years old. Though sometimes I wonder if that's in dog years. <

I don't believe that he is 60 years old any more than I believe that he is "retired". Where did you get that?

Sunday, May 07, 2006 8:00:00 AM  
Anonymous Dave Fafarman. said...

> Desperate, exasperated, frustrated, etc., whatever you want to call it, I made him look like a stupid fool. <

Actually you are making yourself look like a stupid fool constantly. You don't seem to understand a single thing that is posted here. The arguments seem to go over your head, just like the legal opinions that you pretend to analize.

Cut off this blog. You are an embarrasment to the family.

Sunday, May 07, 2006 8:04:00 AM  
Anonymous ShitHead said...

Larry, you are ignorant of the law and biology.

Sunday, May 07, 2006 9:31:00 AM  
Blogger Larry Fafarman said...

Dave Fafarman ( not ! ) said --

>>>>>Actually you are making yourself look like a stupid fool constantly. You don't seem to understand a single thing that is posted here. The arguments seem to go over your head, just like the legal opinions that you pretend to analize.

Cut off this blog. You are an embarrasment to the family.<<<<<<

Now some sleazeball is impersonating my brother !

How do I know ? No. 1 -- my brother would not say something like that. No. 2 -- my brother knows how to spell "analyze" and "embarrassment" (the latter misspelling might have been just a typo, but the former was too obvious).

I am seriously starting to consider breaking my no-deletions policy by deleting obvious impersonations on this blog. Call me a hypocrite if you want. My promise of no censorship did not obligate me to accept this impersonation crap.

Sunday, May 07, 2006 10:07:00 AM  
Blogger Alan Fox said...

Larry complains:

Answering his repetitious nonsense is taking time away from really worthwhile things.

Like what, Larry?

Sunday, May 07, 2006 10:15:00 AM  
Anonymous Anonymous said...


Answering his repetitious nonsense is taking time away from really worthwhile things.

Like what, Larry?


Why ... Holocaust denial, of course!

Sunday, May 07, 2006 12:07:00 PM  
Anonymous Gandalf said...

> I am seriously starting to consider breaking my no-deletions policy by deleting obvious impersonations on this blog. <

This sounds like a great excuse to censor whaever you don't agree with. Nobody really believed that you would keep with your original promises anyway and obviously they had good reason.

> Call me a hypocrite if you want. <

You are showing yourself to be a hypocrite. Posts are already disappearing that do not appear to be impersonations.

We all know that you were one of the first to post under phony names to set up straw men. When others joined in, you cried foul!

Your failure to come up with any new material or to answer posts with other than repetition of previous material is what is killing this blog.

Sunday, May 07, 2006 2:17:00 PM  
Anonymous Colin said...

Holocaust denial? Really? Larry is obviously not very bright and not very honest, but I didn’t realize he was so malicious. Yikes. Creationists run with unpleasant bedfellows; there seems to be a lot of overlap between Holocaust deniers, antievolutionists, and the wacky “HIV doesn’t really cause AIDS” crowd.

Let’s recap:

1. Buckhannon itself says that it does not apply to suits in which the defendants have requested damages. Buckhannon also says, citing Farrar, that nominal damages count.
2. The Kitzmiller plaintiffs requested nominal damages.
3. So Buckhannon does not apply to Kitzmiller. Period.

A child could follow the logic this far. Larry seems lost, however. He says that the board should have just given $11 ($1/plaintiff) to the plaintiffs, and the damages would go away, making Buckhannon relevant again.

Is he right? No, he’s as confused and dishonest as ever. If the defendant offers to pay the requested damages, then that is called a settlement offer. That first word has three syllables, so Larry, read it three times—you seem to need the practice. A plaintiff is not required, absent special rules of court, to accept a settlement offer. That’s why it’s an offer and not a de facto settlement. The Kitzmiller plaintiffs would not have accepted, because they wanted a court order to protect them from future creationist boards.

But let’s enter Larry’s sordid fantasy world and see what would happen if the plaintiffs had been required to accept. Who could force them to accept a settlement offer? Only the courts. That would make it a court-ordered “consent decree,” because it wouldn’t be merely a private settlement. What happens when a court enforces a settlement through a consent decree? Then the plaintiff is a prevailing party and may collect attorneys’ fees otherwise authorized by law. Where can one learn this interesting fact? Sigh, again. In Buckhannon, of course. Which Larry still hasn’t read. So here’s the relevant section:

“In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees. . . . Although a consent decree does not always include an admission of liability by the defendant . . . it nonetheless is a court-ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the defendant.’ . . . These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney's fees.” (citations omitted)

Lots of big words in there, so Larry will undoubtedly skip it and pretend it says something completely different. What it actually says for those who are interested is that if the court orders or enforces a change in the legal relationship between the parties, then the plaintiffs are “prevailing parties” for the purposes of fee awards. If the plaintiffs agree to settle between themselves, without invoking the power of the court, then it’s still a somewhat open question, although the Buckhannon footnote suggests that it wouldn’t be enough by itself. But, again, without the power of the court compelling a settlement, the plaintiffs would never have accepted an $11 settlement offer. And why should they? The plaintiffs, who were harmed by a violation of their constitutional rights, shouldn’t be required to bear the costs of litigation and adjudication.

Back on the subject of Larry’s incompetence and dishonesty, I’m still miffed that he’s lying about the author that he criticizes in the post. Larry says that the author “completely falsifies the decision in Buckhannon” by writing that “the court specifically upheld the [plaintiff’s] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief.” But he’s deceptively misquoting the author. His excerpt makes it look like the author is saying that the court upheld the Buckhannon plaintiff’s entitlement, when he is actually writing about the Kitzmiller plaintiffs’ entitlement. The author cites Buckhannon, correctly, only to note that the irrelevant “catalyst” theory is now limited in federal jurisdictions. His characterization that under that case plaintiffs are still entitled “to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief” is completely, absolutely, one-hundred percent correct. See the language about “material alternation of the legal relationship of the parties” above.

Is Larry’s decision to attack the author by lying about the case a big deal? No, I’m sure the author of that piece is totally unaware of Larry’s hack-job. But it irritates me that Larry feels so free to lie about other people’s work because he knows that if he also lies about the underlying cases, most of his readers won’t bother to check his statements. So I feel like I’ve done a mitzvah by fact-checking this post. For the record: At best, Larry has no idea what he’s talking about and is too lazy or too dumb to educate himself. At worst, he knows that he’s full of crap, but has decided to tell lie after lie in order to obfuscate the issue. I can’t decide which alternative I respect least.

Sunday, May 07, 2006 7:23:00 PM  
Blogger Larry Fafarman said...

Some more thoughts about this subject --

There are two issues involved here, the "voluntary cessation" doctrine and the "catalyst theory." By way of review, the "voluntary cessation" doctrine is the principle that a case is not mooted by the defendant's voluntary cessation of the challenged activity if the defendant can later resume that activity, and according to the "catalyst theory," the plaintiff is "entitled" to an award of attorney fees (if authorized by law for the "prevailing party") if the lawsuit is dismissed but the lawsuit appears to have caused the defendant's voluntary cessation. Of particular concern is how these concepts apply to lawsuits against government entities.

Often, a defendant can avoid application of the "voluntary cessation" doctrine by signing a "consent decree" agreeing to not resume the challenged activity in the future. But what if the government is the defendant and it is not constitutional, legal, or practical for the responsible public officials to sign such a decree, whether for their themselves and their successors or even just for themselves ? For example, the signing of such a decree by state or federal legislators or executives could be considered to be a violation of the constitutional separation of legislative, executive and judicial powers. So if the government entity cannot guarantee that a repealed challenged action will never be re-instated, does the "voluntary cessation" doctrine therefore mean that the lawsuit cannot be mooted, regardless of what stage the lawsuit is at when the voluntary cessation is made ?

Courts do not blindly apply broad legal principles but often tailor a decision to the particular situation. In regard to the issue of an award of attorney fees to the Dover plaintiffs, two factors in particular were in favor of the Dover school board: (1) all except one of the school board members were newly elected and bore no responsibility for the actions of their predecessors, and (2) the plaintiffs' attorneys had agreed to work pro bono. The American Bar Association's policy on pro bono work says, "Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2)." (emphasis is in the original) Paragraphs (a)(1) and (2) refer to persons of limited means and organizations that aid such persons. The ABA pro bono policy adds, "the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section."

Also, Buckhannon contained a very astute observation about the "catalyst theory": The Buckhannon opinion says, "Petitioners discount the disincentive that the 'catalyst theory' may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal........the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct." Suppose, for example, that in the Dover lawsuit the new school board felt that the school district had a good or fair chance of winning in court but wanted to repeal the ID policy anyway (perhaps wholly or partly for reasons having nothing to do with the lawsuit), but decided against repeal because of fear that under the catalyst theory such repeal would be viewed as an admission of wrongdoing and thus automatically entitle the plaintiffs to attorney fees, whereas the district would at least stand a chance of avoiding the fees if the case proceeded to judgment. Actually, defenders of the new school board have perversely been arguing that the alleged futility of trying to moot the case and avoid the fees by repealing the ID policy was an excuse to not repeal the policy, even though the new board members had promised to repeal the policy anyway. Anyway, as I pointed out in my opening post, several of the newly elected school board members indicated in mid-November that they did not want to moot the case even if they could, and damn the seven-figure expense of an attorney fee award -- so the new board members cannot excuse themselves by claiming that they did not have enough time to act.

Finally, attorney fee awards under 42 USC § 1988 are discretionary, even for "prevailing parties."

Some people have the mistaken idea that applying legal principles is like following recipes in a cookbook. Nothing could be further from the truth.

Sunday, May 07, 2006 9:04:00 PM  
Blogger Larry Fafarman said...

Colin said ( Sunday, May 07, 2006 7:23:32 PM ) --

>>>>Let’s recap:<<<<<

Please -- let's not.

>>>>
1. Buckhannon itself says that it does not apply to suits in which the defendants have requested damages. Buckhannon also says, citing Farrar, that nominal damages count.
2. The Kitzmiller plaintiffs requested nominal damages.
3. So Buckhannon does not apply to Kitzmiller. Period.<<<<

You just keep repeating over and over again your ridiculous argument that the silly $11 nominal damages award in KItzmiller is a crucial difference between Kitzmiller and Buckhannon. I already pointed out that under this line of reasoning, "any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered" -- which is of course absurd. Reductio ad absurdum. Q.E.D.

Are you really an attorney, Colin ? I am beginning to wonder -- I can't believe that an attorney could keep a straight face while repeating this argument of yours.

>>>>I’m still miffed that he’s lying about the author that he criticizes in the post. Larry says that the author “completely falsifies the decision in Buckhannon” by writing that “the court specifically upheld the [plaintiff’s] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief.” But he’s deceptively misquoting the author. His excerpt makes it look like the author is saying that the court upheld the Buckhannon plaintiff’s entitlement, when he is actually writing about the Kitzmiller plaintiffs’ entitlement. <<<<<

OK, I misunderstood that the above quotation from the article referred to Kitzmiller rather than Buckhannon, but that misunderstanding was the fault of the author's own sloppy typing and wording. For example, I thought that "shere" was supposed to be "there" and not "here" -- I didn't know that the "s" was shifted over from the preceding word. The statement is neither "here" nor "there" (LOL) and furthermore it is not obvious that the intended word "here" refers to Kitzmiller and not to Buckhannon. However, the statement is still false even when correctly interpreted, because Buckhannon never "specifically" said -- or even implied -- any such thing about Kitzmiller. Also, the article said, "it has been long recognized that plaintiff can recover attorneys fees even before the lawsuit as long as the plaintiff’s actions and threatened lawsuit were the 'catalyst' for the defendant’s changed conduct." Wrong. The Supreme Court specifically ruled that the catalyst theory did not apply to the plaintiff/petitioner in Buckhannon (this ruling is in my opening post's quote of the opinion's very first paragraph, which describes the theory without mentioning it by name). And having gotten that wrong, the article of course did not explain why the catalyst theory should apply in Kitzmiller when it did not apply in Buckhannon.

Monday, May 08, 2006 12:51:00 AM  
Blogger Larry Fafarman said...

Colin said...

>>>>You should cite Buckhannon with a pin cite if you want readers to check the quotation in context:

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).<<<<<

This is an old comment, but I want to reply to it now.

Unfortunately, many online copies of opinions do not give the individual page numbers of the final printed versions. I like to give those page numbers where I can.

Monday, May 08, 2006 7:04:00 AM  
Anonymous Colin said...

Whoooo, you are a dummy.

You just keep repeating over and over again your ridiculous argument that the silly $11 nominal damages award in KItzmiller is a crucial difference between Kitzmiller and Buckhannon. I already pointed out that under this line of reasoning, "any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered" -- which is of course absurd. Reductio ad absurdum. Q.E.D.

This is what we in the non-crazy community call a “fantasy.” That is, you are making something up-that this situation is absurd-and assuming not only that it is true, but that because the situation is “absurd” then it can’t be true. You are, of course, wrong on both counts. It is true that “any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered.” How do we know that? Why, we read what Chief Justice Rehnquist wrote in Buckhannon, which you cited but still have not read:

“And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

Honestly, is that so difficult a passage? Are the words too long, or in too small a font? Do you have someone there who can read it and explain it to you?

So yes, “any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered.”

There’s a very recent case that recognized just that. See Donkers v. Simon, 2006 WL 901874 (6th Cir., Apr. 6 2006) (“We also recognize that if Donkers were seeking nominal or other monetary damages, then her case would not be mooted by the mere fact that her claim for declaratory or injunctive relief is moot.”).

Or how about a Supreme Court case? “Two cadets filed suit against Josiah Bunting, then-Superintendent of VMI, challenging the constitutionality of the prayer, and seeking declaratory and injunctive relief, nominal damages, costs, and attorney's fees. The District Court entered summary judgment for the cadets. That judgment was appealed, and by the time the Fourth Circuit panel ruled, the cadets had graduated. This mooted the declaratory and injunctive relief claims (the only claims the current Superintendent might have inherited when he succeeded Bunting), but the money damages claim against Bunting in his personal capacity remained, and raised the same constitutional question.” Bunting v. Mellen, 541 U.S. 1019, 1074 (2004).

Or how about a Third Circuit case, which was binding on the district court in Kitzmiller? “Nonetheless, where a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests. Jersey Cent. Power & Light Co. v. State of New Jersey, 772 F.2d 35, 40 (3d Cir.1985). "[T]he availability of damages or other monetary relief almost always avoids mootness." Id. at 41.” Doe v. Delie, 257 F.3d 309, 314 (3rd Cir. 2001).

There are two predicate considerations - the plaintiffs must be able to claim damages, which is usually the case, and they must be able to claim fees, which is usually not the case. But here, the plaintiffs were able to claim damages, and were statutorily authorized to seek fee-shifting. There is another exception: a plaintiff cannot add a nominal damages claim at the last minute to avoid mootness. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997). But that’s not the case here.

I can see why you don’t want to accept any of this. It must be a little embarrassing to be so completely wrong, and you don’t seem to have the integrity necessary to admit error. You have obviously come to rely on the “argument from fantasy” approach; you make things up, and pretend that they are true despite all the evidence to the contrary. If you say it loudly and often enough, you assume, more honest people will stop pointing out your lies. You’re in numerous, if not good, company here - the other Intelligent Design creationists are doing exciting new work in the field of fantasy. They’ve developed remarkable models of make-believe, and established an entire cottage industry of fanciful imagination. And it’s certainly easier than learning facts or studying the field about which you’re commenting; they don’t need to (and don’t) know any biology, and you don’t need to (and don’t) know any law.

The only problem with the make-believe school is that it disadvantages you in the real world. For example, when you say “the article of course did not explain why the catalyst theory should apply in Kitzmiller when it did not apply in Buckhannon,” you’ve clearly left the real world behind. The article doesn’t claim that the catalyst theory applies to Kitzmiller. That entire parenthetical is explaining why it’s not applicable. But I can see why such a complex construction left you in the dust – you have only a passing familiarity with the written word, and an even more tenuous relationship with honesty.

Monday, May 08, 2006 8:01:00 AM  
Anonymous colin said...

Whoops, I completely overlooked your 9:04 flight of fancy.

There are two issues involved here, the "voluntary cessation" doctrine and the "catalyst theory."

Wrong. Catalyst theory was never at issue in Kitzmiller. You only think it is because you’re trying to apply cases that you haven’t read and don’t understand.

So if the government entity cannot guarantee that a repealed challenged action will never be re-instated, does the "voluntary cessation" doctrine therefore mean that the lawsuit cannot be mooted, regardless of what stage the lawsuit is at when the voluntary cessation is made ?

Not to my knowledge, because a defendant need not sign such a decree in all cases. They can also meet their burden by simply convincing the court that the challenged action will not, or is not likely to, recur. That’s obviously not the case in Kitzmiller, where the new board narrowly edged out creationist candidates who explicitly campaigned on their support for the challenged policy.

In regard to the issue of an award of attorney fees to the Dover plaintiffs, two factors in particular were in favor of the Dover school board: (1) all except one of the school board members were newly elected and bore no responsibility for the actions of their predecessors, and (2) the plaintiffs' attorneys had agreed to work pro bono.

Neither of those factors are relevant. The board was liable; the individual board members aren’t personally on the hook for the fees. Nor does it matter that their attorneys agreed to work pro bono; the plaintiffs deprived the defendants of a constitutionally protected right, and are accordingly liable for the fees plaintiffs incurred seeking justice. See sec. 1988. You have to remember - making things up that sound relevant is not the same thing as making a logical argument.

Monday, May 08, 2006 8:18:00 AM  
Anonymous W. Kevin Vicklund said...

Colin, you had a typo in that last post. You meant to say "the defendants deprived the plaintiffs of a constitutionally protected right", correct?

Monday, May 08, 2006 8:40:00 AM  
Anonymous Anonymous said...

I absolutely did. Nice catch, thank you very much.

Monday, May 08, 2006 9:56:00 AM  
Anonymous Colin said...

Whoops, forgot to sign my name. Anyway, thanks for the correction.

Monday, May 08, 2006 9:57:00 AM  
Anonymous Anonymous said...

It's obvious the Dover school board is whacked. Not a single mention of Mr Potato Head as the intelligent designer!

Monday, May 08, 2006 11:47:00 AM  
Blogger Larry Fafarman said...

Reply to post by Colin ( 5/08/2006 08:01:41 AM ) --

I have already completely refuted you, Colin, but you continue to introduce more quote-mining and specious arguments in an attempt to defend the indefensible. How many bites at the apple do you want ? Are you just trying to distract me so that I don't have time to prepare posts on other issues? I have already pointed out that this "Monday morning" debate cannot excuse the Dover school board. I should no longer be responding to you, but unfortunately some readers of this blog may misinterpret my silence as an admission of defeat. Darwinists have a double standard: when they quit debates, it is because they won or no longer have the time to continue, but when their opponents quit debates, it is because the opponents lost.

>>>>>(quoting Buckhannon)-- “And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”<<<<<

I have already refuted your argument here by pointing out that if the defendant pays or offers to pay the claim for damages outside of court, then the phrase "so long as the plaintiff has a cause of action for damages" ceases to apply. The court never said that the claim for damages could continue after the defendant pays or offers to pay the damages. Sheeesh

>>>>>“any plaintiff in any lawsuit could prevent a ruling of mootness just by demanding nominal damages and then refusing payment of those damages when offered.”
There’s a very recent case that recognized just that. See Donkers v. Simon, 2006 WL 901874 (6th Cir., Apr. 6 2006) (“We also recognize that if Donkers were seeking nominal or other monetary damages, then her case would not be mooted by the mere fact that her claim for declaratory or injunctive relief is moot.”). (my emphasis)<<<<<

This opinion is just dictum, because Donkers never sought monetary damages -- the opinion also says, "Donkers's complaint unambiguously seeks only declaratory and injunctive relief, and this court cannot invent requests for damages that the plaintiff did not make......" from http://www.ca6.uscourts.gov/opinions.pdf/06a0244n-06.pdf

Also, note my emphasis on the word "other" -- the opinion was not talking just about nominal damages (the only kind requested by the Dover plaintiffs), nor was the opinion talking about a situation where the defendant paid or offered to pay the damages outside of court.

>>>>>"This mooted the declaratory and injunctive relief claims (the only claims the current Superintendent might have inherited when he succeeded Bunting), but the money damages claim against Bunting in his personal capacity remained, and raised the same constitutional question.” Bunting v. Mellen, 541 U.S. 1019, 1074 (2004).<<<<<

Where did you find this Supreme Court case? According to what I found, certiorari was denied. Anyway, your quote says nothing about whether Bunting offered to pay the damages claim outside of court.

>>>>>>Or how about a Third Circuit case, which was binding on the district court in Kitzmiller? “Nonetheless, where a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests. Jersey Cent. Power & Light Co. v. State of New Jersey, 772 F.2d 35, 40 (3d Cir.1985).<<<<

Says nothing about the kinds of relief sought.

>>>> "[T]he availability of damages or other monetary relief almost always avoids mootness." Id. at 41.” Doe v. Delie, 257 F.3d 309, 314 (3rd Cir. 2001).<<<<<

Says nothing about whether payment or offer of payment outside of court moots the damage claim.

>>>>a plaintiff cannot add a nominal damages claim at the last minute to avoid mootness. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997).<<<<<

Here the court conveniently disposed of the nominal-damages claim by a ruling of untimeliness.

>>>>The article [i.e., "Discovery Institute really needs better lawyers"] doesn’t claim that the catalyst theory applies to Kitzmiller.<<<<<

Bullshit it didn't. Go back and read the article again.

Nominal damages are just tokens of vindication and hence are really a form of declaratory relief. When a court says that a case is not moot because there is a claim for nominal damages, what the court is really saying is that there is a claim for declaratory relief in the form of vindication -- this is common in libel cases. The court cannot force the alleged libeler to make a retraction, but the court can provide declaratory relief in the symbolic form of nominal damages. Indeed, I wonder if a court would hold that a libel charge is moot if the defendant makes a retraction and pays a claim for nominal damages -- I think that the answer would be yes.

The costs of operating courts are almost entirely borne by the taxpayers -- the litigants pay only a tiny fraction of these costs. The courts are very busy and have better things to do than continue cases where there is nothing more at stake than a nominal damage claim of $1. Spending time on such frivolous cases would take valuable court time away from other cases that are badly in need of the courts' attention.

==============================

Colin said ( Monday, May 08, 2006 8:18:49 AM ) --

>>>>>Catalyst theory was never at issue in Kitzmiller.<<<<<

Wrong. The catalyst theory is supposedly the reason why the Dover school board could not have avoided an attorney-fee award by repealing the ID policy before judgment.

>>>>>So if the government entity cannot guarantee that a repealed challenged action will never be re-instated, does the "voluntary cessation" doctrine therefore mean that the lawsuit cannot be mooted, regardless of what stage the lawsuit is at when the voluntary cessation is made ?
Not to my knowledge, because a defendant need not sign such a decree in all cases. They can also meet their burden by simply convincing the court that the challenged action will not, or is not likely to, recur.<<<<<<

Government offficials can never guarantee that a voluntarily ceased or repealed action will never be re-instated.

>>>>>"In regard to the issue of an award of attorney fees to the Dover plaintiffs, two factors in particular were in favor of the Dover school board:
(1) all except one of the school board members were newly elected and bore no responsibility for the actions of their predecessors, and (2) the plaintiffs' attorneys had agreed to work pro bono"


Neither of those factors are relevant. The board was liable; the individual board members aren’t personally on the hook for the fees.<<<<<

My point here has nothing to do with whether individual board members were personally on the hook -- my point here is that the previous board members could have been accused of acting in bad faith if they had waited until the last minute to repeal the ID policy whereas the new board members could not have been similarly accused if they had repealed the ID policy at the last minute. Attorney fee awards under 42 USC § 1988 are discretionary and this law does not limit the grounds for denying or reducing the award.

>>>>>
Nor does it matter that their attorneys agreed to work pro bono; the plaintiffs deprived the defendants of a constitutionally protected right, and are accordingly liable for the fees plaintiffs incurred seeking justice<<<<<

OK, I will concede that it does not matter that the plaintiffs' attorneys agreed to work pro bono, but not for the above reason that you gave. The Supreme Court ruled in Blum v. Stenson, 465 U.S. 886 (1984) that attorney fee awards under 42 USC § 1988 may not be reduced on the grounds that the legal representative is pro bono and/or non-profit: "The statute and its legislative history establish that 'reasonable fees' are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations." However, I showed that this ruling was based on a misinterpretation of a Senate report -- see http://www.pandasthumb.org/archives/2006/02/the_dover_trap.html#comment-80901 (posted under "B.F", one of my pseudonyms on Panda's Thumb ).

Anyway, Colin, I have been more than generous in responding to your comments. In contrast, I was kicked off of a thread on "Dispatches from the Culture Wars" just because the blogger did not like my arguments, even though the thread had my name on it and was started for the sole purpose of attacking my ideas. I have also been banned and deleted on Panda's Thumb for the same reason. My failure to respond to any of your future comments on this matter will not mean that I am conceding anything.

Monday, May 08, 2006 4:51:00 PM  
Anonymous Anteater said...

> I have already completely refuted you, Colin,<

Repeating your original misunderstandings and failing to answer his points is not refuting him.

> How many bites at the apple do you want? <

How many do you want, Larry?

> Are you just trying to distract me so that I don't have time to prepare posts on other issues? <

If you stop repeating yourself and demonstrating your lack of understanding, you would have all of the time in the world.

> but unfortunately some readers of this blog may misinterpret my silence as an admission of defeat. <

You have been defeated already. There is no need to make youself look even more idiotic.

When the darwinists quit it is usually because they see the futility of trying to get through the density of their opposition.

Monday, May 08, 2006 5:06:00 PM  
Anonymous W. Kevin Vicklund said...

Still lying about Blum v. Stenson, Larry?

Monday, May 08, 2006 5:51:00 PM  
Anonymous Anonymous said...

What, exactly, is the point of this argument? It seems obvious, give the way the court ruled, that it would not have allowed the case to be mooted. Then the board would have been in the position of persuing the battle to fight for moot, at additional taxpayer expense. They chose to let it end. Which seems to be what the voters wanted. This dead horse seems to be quite throughly beaten. Move on.

Monday, May 08, 2006 5:53:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said...

>>>>>Still lying about Blum v. Stenson, Larry?<<<<<

Kevin, you have some nerve bringing up your disagreement with me over Blum v. Stenson. You asked PT to censor my most recent PT comment on this issue, and PT obliged.

My cited PT post on this issue is clear. The Senate report citation in Blum v. Stenson only said that the non-pecuniary nature of a lawsuit should not be considered a reason for a reduction in the fee award -- the citation said nothing about plaintiffs' legal representatives who are non-profit and/or pro bono.

Monday, May 08, 2006 7:42:00 PM  
Anonymous W. Kevin Vicklund said...

That's because you highlighted the wrong parts and ignored and lied about the case law. I bolded the relevant quotes from the Senate Report and italicized the part you had bolded. I also included the rest of the case law as cited by the Supreme Court relevant to the topic, not including footnotes.

>>>Resolution of these two arguments begins and ends with an interpretation of the attorney's fee statute. The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants. In enacting the statute, Congress directed that attorney's fees be calculated according to standards currently in use under other fee-shifting statutes:

"It is intended that the amount of fees awarded under [1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. 9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976). 8

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. 9 None of these four cases made any mention of a cost-based standard. 10 Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD 9444 (CD Cal. [465 U.S. 886, 895] 1974), make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." 64 F. R. D., at 681. In Davis, the court held:

"In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney's fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees." 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of "windfall profits" it expressly intended to prohibit.

The statute and legislative history establish that "reasonable fees" under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel. 11 The policy arguments advanced in favor of a [465 U.S. 886, 896] cost-based standard should be addressed to Congress rather than to this Court.<<<

The report clearly and unequivocally states that the same standards that applied to other awards of attorney fees be applied to attorney fees awarded for Civil Rights violations - ie, no additional standards may be applied because it is a civil rights issue. So what are those standards? Well, the report could spend many pages detailing the standards and how they were to be applied; or it could search for relevant legislation or case law and only spend a sentence or two citing it. The report chose the second option (why reinvent the wheel?) and cited a case that established the standards and three cases that properly applied those standards.

Johnson v. Georgia Highway Express is the case that established the standards cited by Congress. Specifically, it established 12 standards. The first standard established a base amount for attorney fees - a reasonable hourly rate multiplied by hours worked. The remaining 11 standards modify, either upwards or downwards, the amount of the fee awarded. So the question is two-fold: have these standards been applied to the question of pro-bono or non-profit representation, and if so do any of these 12 standards modify the award in such a case?

As a matter of fact, two of the cases cited by the Senate report do apply these standards to representation. In both cases, as seen above in the quotes provided in Blum v. Stenson, the courts determined that the standards did not modify or eliminate the award for pro-bono (Stanford Daily) or non-profit (Davis) representation.

Therefore, when Congress stated that the standards were correctly applied in those two cases, they were specifically approving a full award of attorney fees (as modified by the standards) to pro-bono and non-profit representation. Had they disapproved, they would have had to state that the standards were incorrectly applied in those cases. Furthermore, it had already been long-established that pro-bono and non-profit representation were entitled to full fee awards in the existing fee-shifting statutes - which Congress expressly indicated should be followed.

For those interested, the 12 standards (as paraphrased by Hensley v. Eckerhart, an opinion cited by Blum v. Stenson) are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d, at 717-719. These factors derive directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980).

Monday, May 08, 2006 9:43:00 PM  
Blogger Colin said...

Anonymous asked what the point of continuing is. Well, I can only speak for myself, but I'm having a good time. And beyond that, I take my chosen career seriously – I don't like seeing someone lie about the law. Finally, Larry's lies matter. There is always the chance that someone will stumble across the site and believe that he is expressing an opinion founded in fact or law. That's not a big deal in this instance, because who cares what he thinks about the Dover board? But he's dishonest about other things as well, even, or so I'm told, extending to Holocaust denial. Larry should be reminded that he cannot lie with impunity – other people are reading his work and will point out his many and repeated falsehoods.

I have already refuted your argument here by pointing out that if the defendant pays or offers to pay the claim for damages outside of court, then the phrase "so long as the plaintiff has a cause of action for damages" ceases to apply. The court never said that the claim for damages could continue after the defendant pays or offers to pay the damages.

You don't refute something by making up facts off the top of your head. You have mistated the law, probably because you're too lazy or too intellectually dishonest to find out what the law actually says. In fact, you are incorrect: simply offering money doesn't make the claim for damages go away—the plaintiffs have to accept the offer. And a plaintiff (such as the Kitzmillers) will not accept a settlement that will deprive them of attorneys' fees. If you vomit up more fantasy about what you think the law might be on this point, I'd ask that you at least (A) look for some actual support for your imaginary point of law, and (B) consider why the Kitzmillers would have accepted an offer of $11 that would deprive them of both a binding court order and attorneys' fees. In the event that a court forces a settlement upon the plaintiffs, that would be a court-ordered alteration in the legal relationship between the parties, and the plaintiffs would be “prevailing parties.” You can read all of this for yourself in the cases we've been discussing. Have you read those cases? You don't seem to have any idea what they say.

This opinion is just dictum, because Donkers never sought monetary damages...

It is a statement of the law. You have also made a statement of the law. Your statement and the statement of three federal appellate judges (not to mention the Supreme Court in Buckhannon) say opposite things. The Sixth Circuit and the Supreme Court are correct, and you are both totally ignorant and too dishonest to admit it.

“We also recognize that if Donkers were seeking nominal or other monetary damages, then her case would not be mooted by the mere fact that her claim for declaratory or injunctive relief is moot.” . . . note my emphasis on the word "other" -- the opinion was not talking just about nominal damages (the only kind requested by the Dover plaintiffs), nor was the opinion talking about a situation where the defendant paid or offered to pay the damages outside of court.

So when the court says “if X or Y were true, then Z would also be true,” your argument is that the court is not talking about X. Wow. That's the dumbest thing you've said so far, and that, my ignorant friend, is an astonishing accomplishment. Moreover, the court isn't talking about whether the defendants offered a settlement because that is, under every case we've discussed, a completely irrelevant factor. You keep saying that it's dispositive, but you're just making that up as you go along. Not surprisingly, the courts don't call Larry Fafarman when they want to know what the law is – they look to precedent, statutes, and common law. And none of those things support your made-up claim that a settlement offer prevents plaintiffs from qualifying as “prevailing parties.” You have no support for this principle, because it's not true; you merely want it to be true, because it would support your argument. But wanting something to be true doesn't make it so.

Nominal damages are just tokens of vindication and hence are really a form of declaratory relief.

“The sky is really orange.” “The moon is really made of cheese.” Just saying things doesn't make them true. Nominal damages have a real effect, namely (at the very least) that they qualify plaintiffs for fees. Farrar and Buckhannon point that out, but you still haven't read those cases, have you? If you ever take this crap to court, do yourself a favor – making things up doesn't go over very well. You need to cite cases, statutes, or legal principles to get ahead with an educated and aware audience, or at least make a logical argument.

I wonder if a court would hold that a libel charge is moot if the defendant makes a retraction and pays a claim for nominal damages -- I think that the answer would be yes.

You don't have to wonder. Buckhannon answers this question for you. A voluntary settlement can moot a case. A settlement that the court forces plaintiffs to accept cannot. So if the libel plaintiff voluntarily accepted the settlement, the case would probably be moot (barring application of the repeatability doctrine). Otherwise, no mootness. Read the case.

The courts are very busy and have better things to do than continue cases where there is nothing more at stake than a nominal damage claim of $1.

Utter bullshit. Read Buckhannon or Farrar or Bunting, which raised almost the exact same issue: the declaratory and injunctive claims were mooted, “but the [nominal] money damages claim against Bunting in his personal capacity remained, and raised the same constitutional question.” Just like Kitzmiller would have still been alive had the board ceased its infringing conduct – the nominal damages claim would have kept it alive. You're just pretending otherwise because... I don't know why. Why are you so obtuse?

The catalyst theory is supposedly the reason why the Dover school board could not have avoided an attorney-fee award by repealing the ID policy before judgment.

Every discussion is like starting over from scratch. You never read, you never learn, and you never think. Catalyst theory had nothing to do with Kitzmiller. You only think that because of the sawdust between your ears. Catalyst theory is (or was) a way to avoid mootness. Kitzmiller was a claim for damages (which, again, would not have gone away even if the defendants had offered a settlement). It could not have become moot in the first place. It never got to catalyst theory.

So, to sum up:

1.Defendants cannot moot a case for damages by voluntarily halting their conduct.
2.Kitzmiller was a case for damages.
3.The board could not have ducked liability for the fees by offering to pay the nominal damages:
A. The plaintiffs would never have accepted, in a case they were clearly winning, an $11 offer that would deprive them of both a binding court order and attorneys fees, and
B. If the court forced the plaintiffs to accept, that would be a settlement under the court's auspices and the plaintiffs would have been prevailing parties entitled to collect fees.
4.Kitzmiller could not have been mooted.

And finally, you lied when you wrote that the author of the linked article the author “completely falsifies the decision in Buckhannon” by writing that “the court specifically upheld the [plaintiff’s] entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief.” Buckhannon did hold that a plaintiff who obtains a settlement or other court order awarding relief is entitled to fees. I think you honestly misunderstood the point before, because it is rather subtle; the author assumes that you understand the difference between a voluntary and court-enforced settlement. You didn't, and misunderstood his point. But now that it's clear, you should retract your accusation. It's just further tarnishing your already negligible credibility.

Why is it so important for you to attack these people that you're willing to humiliate yourself with ridiculous and ignorant rhetoric to do it?

Monday, May 08, 2006 9:45:00 PM  
Blogger Colin said...

That's an excellent summary, W. Kevin Vicklund. I especially like your contrast of the relevant part of the excerpt with the part that Larry quoted.

Monday, May 08, 2006 9:47:00 PM  
Blogger Larry Fafarman said...

Reply to post by W. Kevin Vicklund ( 5/08/2006 09:43:26 PM ) --

Kevin, here is the smoking gun, you lousy sleazebag. Here is my PT post that was censored at your request (I posted under J. Simes to evade a ban) -- PT did not even clean up the evidence (my post wasn't deleted, just "disemvoweled," as PT calls it) --
http://www.pandasthumb.org/archives/2006/03/no_more_coffee.html#comment-94087

You said, " By the way, when are you going to remove Larry’s posts, PZ? He is banned, after all." You have some rotten nerve coming over here and commenting after what you did to me on PT. I ought to just kick your lousy butt off of this blog and be done with it. I would like to see someone say that I don't have the right to do it or that it would be a violation of my no-censorship policy. When in the hell are you going to apologize ?

Anyway, your post here was refuted a long time ago by the following statement in one of my PT posts -- "Blum v. Stenson noted that court decisions listed in the above Senate report quote ruled that attorney fee awards for non-profit and/or pro bono legal representatives should be computed in the 'traditional' manner, but those rulings are of no consequence here if the Senate report does not expressly agree." -- from http://www.pandasthumb.org/archives/2006/02/the_dover_trap.html#comment-80901

All the Senate report quote in Blum v. Stenson said was, “It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature,",(emphasis added), and then the Senate report quote cited cases in support of that specific statement concerning non-pecuniary rights. The quote of the Senate report said absolutely nothing about pro-bono or non-profit legal representatives. Citing a case in support of a specific statement does not automatically include parts of the case that do not support that specific statement -- that is ridiculous. All that the readers of the Senate report knew about those cited cases was what was specifically said in the Senate report -- just the part about non-pecuniary rights and nothing more.

Tuesday, May 09, 2006 12:30:00 AM  
Blogger Larry Fafarman said...

Reply to post by Colin ( 5/08/2006 09:45:01 PM ) --

Yet another harangue from Colin. I will have to shorten my replies -- I just don't have the time to answer every detail of the absolute crap that he posts. Most of his comments here are just repetitions of his old claims which I have already refuted repeatedly.

>>>>In fact, you are incorrect: simply offering money doesn't make the claim for damages go away—the plaintiffs have to accept the offer. And a plaintiff (such as the Kitzmillers) will not accept a settlement that will deprive them of attorneys' fees.<<<<<

In Buckhannon, the courts told the plaintiff that it had to accept the "offer" -- i.e., the legislature's repeal of the challenged statute -- and that there would be no award of attorney fees.

>>>>This opinion is just dictum, because Donkers never sought monetary damages...

It is a statement of the law. <<<<<

It is still dictum because it does not apply to the facts of the case and is not necessary to reach a decision in the case. Dicta carry much less weight than essential statements of opinion.

>>>>Nominal damages have a real effect, namely (at the very least) that they qualify plaintiffs for fees. Farrar and Buckhannon point that out, but you still haven't read those cases, have you? <<<<<

There was no claim for nominal damages in Buckhannon. There was originally a claim for real damages in Buckhannon, but that claim was dropped. I have not read Farrar, but you said that the nominal or other unsubstantial damages awarded there were held to be insufficient to justify an award of attorney fees.

>>>>>A. The plaintiffs would never have accepted, in a case they were clearly winning, an $11 offer that would deprive them of both a binding court order and attorneys fees, and
B. If the court forced the plaintiffs to accept, that would be a settlement under the court's auspices and the plaintiffs would have been prevailing parties entitled to collect fees.<<<<<

The court did not have to force the Dover plaintiffs to accept the $11 in nominal damages -- the court could have just declared the case to be moot, as was done in Buckhannon. If the plaintiffs refused to take the $11, that would have been their problem.

>>>>>Buckhannon did hold that a plaintiff who obtains a settlement or other court order awarding relief is entitled to fees.<<<<<

Wrong. Buckhannon says, "In the United States, parties are ordinarily required to bear their own attorney’s fees – the prevailing party is not entitled to collect from the loser........Under this 'American Rule,' we follow 'a general practice of not awarding fees to a prevailing party absent explicit statutory authority.' And the statutes authorizing awards of fees either always or often state that such awards are discretionary.

Tuesday, May 09, 2006 2:23:00 AM  
Blogger Larry Fafarman said...

Anonymous said ( Monday, May 08, 2006 5:53:05 PM ) --

>>>>>What, exactly, is the point of this argument? It seems obvious, give the way the court ruled, that it would not have allowed the case to be mooted.<<<<<

Wrong. Judge Jones never had to rule on the issue of mootness because the new school board did not repeal the ID policy prior to release of the judgment. Also, sometime around the middle of November, Jones said that the school-board election results would have no effect on his decision. This statement amounted to improperly giving legal advice to the new school board members, as it may have influenced their decision to not repeal the ID policy in early December. The new board members probably figured that if anyone ever criticized them for that decision, they could always give the phony excuse that they were acting on the advice of Judge Jones as well as that of their own attorney (but against the advice of an attorney who had prepared a written analysis supporting immediate repeal) -- never mind that they had campaigned on a promise to get rid of the ID policy ASAP. As it turned out, the Buckhannon case, cited in my opening post, is an example of something that all the snooty so-called "experts" said could never happen -- a case where the courts (1) ruled that a lawsuit was rendered moot by the government's voluntary repeal of the challenged enactment and (2) ruled that the plaintiff in that lawsuit was not eligible for a statutory award of attorney fees. Confronted with this glaring contradiction of their claims, most of the so-called "experts" just clammed up, but one of them, Colin, tried to move the goalposts by making ridiculous claims that the following differences between Buckhannon and Dover are crucial: (1) Buckhannon involved state govenrment whereas Dover involved local government, (2) repetition was supposedly more likely in Dover than in Buckhannon, and (3) there was a silly $11 nominal damages claim in Dover.

>>>>>Then the board would have been in the position of persuing the battle to fight for moot, at additional taxpayer expense.<<<<<

The additional expense of fighting the fee claim would have been far cheaper than the cost of the original lawsuit -- no long trial, depositions, etc. -- and this fight would have had the potential to save the school district a lot of money.

>>>>> They chose to let it end. Which seems to be what the voters wanted.<<<<<

The voters who supported the new school board members either (1) wanted them to get rid of the ID policy ASAP, (2) wanted them to try to prevent or reduce the loss of school district funds in the lawsuit, or (3) both. They did neither.

>>>>>This dead horse seems to be quite throughly beaten. Move on.<<<<<<

It's never over. During the election, the new board members were accused of being in cahoots with the ACLU, and now there is evidence that the accusations were true. There is also an opportunity here to further discredit Judge Jones by charging him with improperly giving legal advice to the board when he said that the election results would not affect his decision. And if we could succeed in getting the new school board members promptly voted out of office, which is a good prospect because the last election was very close, it would be a great victory for us.

I am a firm believer in the dictum, "sometimes the best defense is an offense."

Tuesday, May 09, 2006 4:26:00 AM  
Anonymous Anonymous said...

Time Traveler? Space Alien? Mr Potato Head?

Which is the intelligent designer, Larry?

Tuesday, May 09, 2006 10:38:00 AM  
Anonymous Anonymous said...

Colin, here's Larry's own statement from the masthead of this blog:

"This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated."

You know where he stands on evolution theory. It doesn't take a rocket scientist to figure out where he stands on the Holocaust. Technically, Larry's a Revisionist, not a Denialist, I believe.

OK, you can go back to the current episode of "Lawyer vs. Loser" now ...

Tuesday, May 09, 2006 11:27:00 AM  
Blogger Colin said...

Larry, do you really think that you advance your cause by demonstrating over and over again that you are both ignorant and dishonest? I don’t know how much simpler I can make this: You do not refute anything by inventing imaginary rules and pretending that they are the law. Just because you think something should be true does not make it so.

In Buckhannon, the courts told the plaintiff that it had to accept the "offer" -- i.e., the legislature's repeal of the challenged statute -- and that there would be no award of attorney fees.

No. Absolutely wrong. The mootness issue in that case was not related to a settlement offer. Did you ever read the case, as I asked you to? Can you cite language showing how the state’s action was related to an “offer” to do anything? You cannot, because it is not true. You are either completely ignorant of the case, or just so bereft of intellectual integrity that you don’t hesitate to lie to support your argument. I think it’s both, personally.

There was no claim for nominal damages in Buckhannon. There was originally a claim for real damages in Buckhannon, but that claim was dropped.

That, my idiot friend, is why Buckhannon was mootable while Kitzmiller was not.

I have not read Farrar, but you said that the nominal or other unsubstantial damages awarded there were held to be insufficient to justify an award of attorney fees.

It’s obvious that you haven’t read it, or any other case involved in this discussion. The plaintiffs there failed to recover fees because they failed to prevail on the substantive merits. That is not the case in Kitzmiller, nor would it have been the case if the board had repealed the policy and offered a settlement. There are surely adult literacy programs that you could turn to if you’re having trouble comprehending the language in these cases.

The court did not have to force the Dover plaintiffs to accept the $11 in nominal damages -- the court could have just declared the case to be moot, as was done in Buckhannon. If the plaintiffs refused to take the $11, that would have been their problem.

How can an adult human being be so stupid? I’ll do this again:

Rehnquist said in Buckhannon, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” A “cause of action” for damages doesn’t go away just because the defendants offer a settlement. A simple explanation, because you aren’t going to follow anything serious, is this: A cause of action is “the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the ‘elements’ required by statute.” How would a settlement offer obviate legal and factual allegations? It wouldn’t. If the plaintiffs accepted the offer, which they wouldn’t, then the cause of action would disappear because that would be a condition of the offer. And, as I’ve said, if they were forced to accept, that would still entitle the plaintiffs to fees. Your made-up rule counts for zilch - you’re just wrong about the law.

>>>>>Buckhannon did hold that a plaintiff who obtains a settlement or other court order awarding relief is entitled to fees.<<<<<

Wrong. Buckhannon says, "In the United States, parties are ordinarily required to bear their own attorney’s fees – the prevailing party is not entitled to collect from the loser........Under this 'American Rule,' we follow 'a general practice of not awarding fees to a prevailing party absent explicit statutory authority.' And the statutes authorizing awards of fees either always or often state that such awards are discretionary.
(emphasis added)

Read that again, dope. We have explicit statutory authority here. That passage cites the American Rule, which is the general rule. Both cases are outside the rule because both involve a fee-shifting statute. The entire purpose of that selection is to show that the case is an exception from the rule. Buckhannon says that any time a court orders relief in any way–including through a court-enforced settlement–the plaintiffs are prevailing parties. It’s plain language, and quite simple. Why do you keep lying about this? Is it so important to you to attack the article’s author that you’re willing to flush away whatever residual credibility you might have had left?

Also, sometime around the middle of November, Jones said that the school-board election results would have no effect on his decision. This statement amounted to improperly giving legal advice to the new school board members, as it may have influenced their decision to not repeal the ID policy in early December.

If the judge told the parties, “This is not a criminal case, so don’t bother to submit any pleadings regarding the constitutionality of the death penalty,” that would be utterly unobjectionable. As unobjectionable as the statement you claim he made here. (I’m not willing to take your word for it, by the way - you’ve shown that you’re more than willing to lie about documents and the statements of others to puff yourself up.) The principle that the board could neither moot the case nor dodge the fees is so obvious, and so simple, that only an utter moron would find a statement to that effect from the bench objectionable. And, by the way, do you have any citation to support your claim that the judge acted improperly? Or are you simply inventing rules again?

As it turned out, the Buckhannon case, cited in my opening post, is an example of something that all the snooty so-called "experts" said could never happen -- a case where the courts (1) ruled that a lawsuit was rendered moot by the government's voluntary repeal of the challenged enactment and (2) ruled that the plaintiff in that lawsuit was not eligible for a statutory award of attorney fees. Confronted with this glaring contradiction of their claims, most of the so-called "experts" just clammed up, but one of them, Colin, tried to move the goalposts by making ridiculous claims that the following differences between Buckhannon and Dover are crucial: (1) Buckhannon involved state govenrment whereas Dover involved local government, (2) repetition was supposedly more likely in Dover than in Buckhannon, and (3) there was a silly $11 nominal damages claim in Dover.

You must suffer from some sort of mental retardation.

(1) is part of (3) - it is the reason why the plaintiffs were able to sue for damages. Even you cannot pretend that the plaintiffs didn’t sue for damages, so I don’t see what your objection to this point is.

(2) Can you show me where in Buckhannon the Court or the parties discussed this doctrine? You can’t, because they don’t. You’re too lazy to read more than one case, so you act likeBuckhannon is a magical talisman that says whatever you want it to say. If you want to humiliate yourself further with stupid arguments on this point, find caselaw that applies the doctrine and discuss it. It’s pointless to argue with you when you just make up facts to suit yourself.

And as for (3), “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” I understand that this point, so simply expressed by CJ Rehnquist, is absolutely devastating to your frankly very stupid argument. Everyone understands that. I mean, it’s so black and white: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” The “silly $11 nominal damages claim in Dover” is all that was necessary to prevent the claim from being mooted. Why? Because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

You’re going to come back with another moronic claim that all the defendants had to do was offer to pay $11 and the case could be mooted. But that’s wrong, and dumb. An offer of payment does not disperse a plaintiff’s “cause of action for damages”; the cause of action is the underlying reason for the request, not the dollar figure. The plaintiffs would have to accept the offer to void their cause of action, which, as I’ve explained, any child could see wasn’t going to happen.

It's never over.

I agree. For as long as you’re telling lies to advance your cause, I’ll do my (very small) part to expose your flagrant dishonesty. (Or at least until I have a deadline and forget about you.) Why? Frankly, I like the idea of adopting an evildoer to thwart. And because I’m a busy man, I picked a dummy - it’s much easier to refute such ignorant and repetitious arguments. I can do my part and never have to break a sweat.

“And if we could succeed in getting the new school board members promptly voted out of office, which is a good prospect because the last election was very close, it would be a great victory for us.”

In other words, you’re lying in order to impair the education of children. Wow. You’re a horrible human being, Larry.

What’s the next target, Holocaust education?

Tuesday, May 09, 2006 2:26:00 PM  
Blogger Colin said...

Two new posts, because I’m sure the few readers still remaining are tired of seeing Larry’s tired old lies rehashed over and over again.

First, a summary of the refutation of Larry’s crap argument, for people who don’t want to trudge through his bullshit:

Larry claims that Buckhannon shows that the Dover board could have mooted the case by repealing the policy and thereby dodged fees. He is wrong for several reasons, but the easiest to explain is that the defendants had a cause of action for nominal damages:

1. Buckhannon says that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” It also explicitly says that nominal damages suffice.
2. The Kitzmiller plaintiffs had a cause of action for nominal damages.
3. A mere offer of settlement on the $1/plaintiff claim (“Here’s your $11, now leave us alone”) would not obviate the cause of action. Causes of action are more than just dollar amounts, and a mere offer of payment does not affect them.
A. If the plaintiffs had accepted such an offer, that might have mooted the case - the offer would be contingent on their relinquishing the cause of action for damages, which is always something the plaintiff can do. But of course the plaintiffs here would never have accepted an offer.
B. If the plaintiffs had been forced to accept such an offer, that would be a court-ordered victory for the plaintiffs, and they would be prevailing parties - again, obvious under the plain language of Buckhannon (and other cases, but we can use that one to simplify the analysis).
4. The defendants had no available avenue to dodge fees. Their only hope would have been to ask the district court to use its discretion not to award fees, but Larry hasn’t shown why the court would do such a thing.

So why does Larry lie about what the cases say? Why does he invent legal rules and fulminate about courts ignoring them? I was baffled, until he wrote, “if we could succeed in getting the new school board members promptly voted out of office, which is a good prospect because the last election was very close, it would be a great victory for us.” It looks like he wants to discredit the board so that he can avenge the defeated creationists. What a sad, bleak crusade.

Tuesday, May 09, 2006 2:51:00 PM  
Blogger Colin said...

Finally, at least for today, something of particular interest. While looking at related cases, I found O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005). The Thomas More center, which defended the board in Kitzmiller, argued that a sculpture displayed on the university grounds was “an unconstitutional endorsement of an anti-Catholic message.” (The sculpture is essentially an unflattering image of a fat bishop.)

That’s right - the Thomas More center, ardent foe of the Establishment Clause (“The Founders of this country would be astonished at the thought that this simple curriculum change ‘established religion’ in violation of the Constitution that they drafted.”) argued that it should be used to censor an art display that they found offensive. Hypocritical enough, as far as I’m concerned.

But why mention it on Larry’s blog? Because the Thomas More center recognizes what Larry pretends not to see! The statue was removed before the case finished, so their claims for declaratory and injunctive relief were mooted. But because the Thomas More center had a cause of action for nominal damages, the overall case was not mooted and proceeded on the merits! As the court held, “The complaint, however, also includes a claim for nominal damages. An award of nominal damages is an appropriate remedy for a violation of the Establishment Clause. See Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir.2001). Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. Utah Animal Rights Coalition, 371 F.3d at 1257-58. This court therefore has jurisdiction to consider the nominal damages claim.”

So Larry not only wanted the Thomas More center to press a ridiculous, insane strategy for mooting the case, he wanted them to pursue a strategy diametrically opposed to another case they had ongoing in another jurisdiction. I’m no fan of the Thomas More center, but they know more law than Larry does - and they know that a cause of action for damages precludes mootness.

And don’t worry, freedom lovers: the Tenth Circuit quite appropriately found that “the statue's placement on Washburn's campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message,” and rejected the frivolous Establishment Clause claim.

The Thomas More center unsurprisingly doesn’t seem to have any information about the case on its website, but I’m sure you can google it. The picture of the statue is... interesting.

Tuesday, May 09, 2006 3:05:00 PM  
Blogger Larry Fafarman said...

Reply to three posts by Colin --

Colin, you still don't get it. Even if everything you say is true and I am completely wrong about the case law, that still would not excuse the Dover school board's failure to repeal the ID policy in December, as I have pointed out repeatedly. The new board members were elected for the sole purposes of getting rid of the ID policy and the lawsuit liabilities. The excuse that the new board members did not have enough time to take action to fulfill their campaign promises was phony enough to begin with, but is even phonier because several new board members said in mid-November that they did not want the case to be mooted by repeal of the ID policy even if it could be done (as I noted in my opening post). Another phony excuse was that the board wanted more input from the community -- LMAO. There was community input coming out the ears for at least the previous year. The board treated the ID policy and the lawsuit like they were completely new issues -- what a load of malarkey. Even the proposal to try to moot the case by repealing the ID policy was old -- it had been introduced at the previous regular meeting. Also, everyone knew that the Jan. 3 meeting would be too late to try the proposal, so the postponement of the discussion of the proposal until Jan. 3 was for all practical purposes a decision to kill the proposal. Case dismissed.

Now -- on to the moot-court arguments.

>>>>>(quoting O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005) ) -- “The complaint, however, also includes a claim for nominal damages. An award of nominal damages is an appropriate remedy for a violation of the Establishment Clause. See Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir.2001). Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. Utah Animal Rights Coalition, 371 F.3d at 1257-58. This court therefore has jurisdiction to consider the nominal damages claim.”<<<<<<<

So far you have not cited a single specific case where a claim for nominal damages was the only unresolved claim -- in all the cases you have cited, the nominal damages claim was in conjunction with some other claim, e.g., a claim of an establishment clause violation in O'Connor and a claim for punitive damages in Searles. Also, to award nominal damages in Dover, it was necessary to find an establishment clause violation, but if the judge had ruled that the establishment clause claim was moot because of repeal of the ID policy (just as the courts decided that Buckhannon was moot because of the repeal of the challenged statute), then there could be no award of nominal damages. With no ruling in favor of any of their claims, the Dover plaintiffs could not be a "prevailing party," and so would not be eligible for an attorney-fee award. Even if the judge could have granted the plaintiffs nominal damages and nothing more, the judge still could rule that those damages were too small to justify a fee award (remember that the fee award is discretionary).

>>>>>Also, sometime around the middle of November, Jones said that the school-board election results would have no effect on his decision. This statement amounted to improperly giving legal advice to the new school board members, as it may have influenced their decision to not repeal the ID policy in early December.

If the judge told the parties, “This is not a criminal case, so don’t bother to submit any pleadings regarding the constitutionality of the death penalty,” that would be utterly unobjectionable. As unobjectionable as the statement you claim he made here.<<<<<<<<

A straw man argument. Judge Jones said something that could have influenced the defendant's behavior in a way that could have affected the ultimate outcome of the case (the outcome in higher courts if not in his own decision). Anyway, people who don't want this statement of Jones to be considered legal advice should stop citing it in support of the Dover school board's decision to not repeal the ID policy prior to judgment.

Colin, why don't you go to Dover and campaign for the re-election of the Dover school board members, making the same crappy convoluted arguments that you are making here, and see how far you get.

Tuesday, May 09, 2006 6:51:00 PM  
Anonymous W. Kevin Vicklund said...

>>>So far you have not cited a single specific case where a claim for nominal damages was the only unresolved claim -- in all the cases you have cited, the nominal damages claim was in conjunction with some other claim, e.g., a claim of an establishment clause violation in O'Connor and a claim for punitive damages in Searles. Also, to award nominal damages in Dover, it was necessary to find an establishment clause violation, but if the judge had ruled that the establishment clause claim was moot because of repeal of the ID policy (just as the courts decided that Buckhannon was moot because of the repeal of the challenged statute), then there could be no award of nominal damages. With no ruling in favor of any of their claims, the Dover plaintiffs could not be a "prevailing party," and so would not be eligible for an attorney-fee award.<<<

O'Connor is in fact a case in which nominal damages were the only unresolved claim - the situation in O'Connor is the same as your hypothetical mooting of Kitzmiller. The two cases:

O'Connor: due to an Establishment Clause violation, plaintiffs asked for declarative relief, injunctive relief, and nominal damages. Declarative and injuctive claims relating to the Establishment Cause violation are rendered moot, leaving the nominal damage claim, which is ruled not mootable. It was also ruled that the nominal damage claim would make the plaintiffs eligible for attorney fee awards if they prevailed on the nominal damage claim.

Kitzmiller: due to an Establishment Clause violation, plaintiffs asked for declarative relief, injunctive relief, and nominal damages. Therefore, even if the declarative and injunctive claims relating to the Establishment Clause violation are rendered moot, that still leaves the nominal damage claim, which has been ruled not mootable. It has also been ruled that the nominal damage claim made the plaintiffs eligible for attorney fee awards if they prevailed on the nominal damage claim.

The simple fact of the matter is that the nominal damage claim in Kitzmiller is just as much in conjunction with the Establishment Clause violation as the claim in O'Connor - no more, no less. As a result, the rest of your paragraph is pure handwaving - O'Connor directly applies.

There is a simple reason why mootness applies to declarative and injunctive relief, but not damages (nominal, monetary, or other), and it is based on the temporal nature of the three types of relief.

Declarative relief is relief from a current violation - your asking that some action, as it currently taking place, be declared a violation. Injunctive relief is relief from future violation - you are asking that an action be prohibited in the future. Damages, however, are asking for relief from past violations.

To declare something moot is to render it hypothetical. If an action is not currently taking place, that action is hypothetical, and courts normally do not rule on hypothetical questions unless it is believed there is a chance the question might arise again. Similarly, courts do not normally rule on whether to prohibit future violations if those violations are hypothetical. However, events in the past are not hypothetical. They actually took place, and they therefore can not be rendered moot - that would be an oxymoron.

Let's examine a hypothetical case. A woman accuses a man of stalking her, and takes him to court. She asks for damages (for mental harm), declarative relief (that stalking is a violation of her rights), and injunctive relief (a restraining order). For whatever reason, the man manages to convince the judge that he will never stalk the woman again, and the judge declares the declarative and injunctive claims moot. Shouldn't the woman still get her day in court as to whether the man stalked her?

Tuesday, May 09, 2006 9:55:00 PM  
Blogger Larry Fafarman said...

Reply to post by Kevin Vicklund ( 5/09/2006 09:55:05 PM ) --

Kevin, why should I respond to you, or even allow you to comment here after what you did to me on Panda's Thumb ? Your comments under my "Censorship" post here show that you knew that I did not use multiple names on PT (or violate any other PT rule) until after I was banned, and then you asked Sleazy PeeZee Myers to censor one of my posts, which he did. When are you going to apologize? Have you no shame ?

Anyway, if I cannot censor you because of my no-censorship pledge, then I need to answer your post, which I do with great reluctance.

One thing that I have established is that this "Monday morning" debate here can do nothing to excuse the Dover school board. So this debate itself is "moot."

>>>>>O'Connor: due to an Establishment Clause violation, plaintiffs asked for declarative relief, injunctive relief, and nominal damages. Declarative and injuctive claims relating to the Establishment Cause violation are rendered moot, leaving the nominal damage claim, which is ruled not mootable. It was also ruled that the nominal damage claim would make the plaintiffs eligible for attorney fee awards if they prevailed on the nominal damage claim.<<<<<<

Wrong -- your above description of the case is not correct. For example, the issue of an attorney fee award was not discussed.

I had a hard time finding the complete opinion for O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005). I had to go to the website of the 10th circuit. Here is the link for the case -- http://www.kscourts.org/ca10/cases/2005/07/04-3103.htm

For starters, O'Connor is just a new and obscure decision of the 10th circuit -- it can hardly be considered to be established case law. It certainly cannot compare in importance with Buckhannon, the Supreme Court decision that I cited in my opening post.

O'Connor is completely different from Kitzmiller. O'Connor involved a university's temporary display of a sculpture -- called "Holier Than Thou" -- that allegedly disparaged the Catholic religion. The appeals court ruled that the "voluntary cessation" doctrine did not apply to O'Connor:
"This is not a case....where the university has unilaterally changed its procedures in an effort to evade judicial review. Rather, as both parties have agreed, Holier Than Thou was removed from campus at the prearranged termination date of the annual sculpture exhibition. A defendant cannot be said to have voluntarily ceased allegedly illegal conduct where, as here, the controversy has become moot through the normal course of events rather than through the unilateral action of the defendant."

The appeals court also ruled that the "capable of repetition, yet evading review" standard did not apply: "Appellants.....have not shown that this case is capable of repetition because they have advanced no explanation as to how Holier Than Thou will return to the Washburn campus in the future."

So the appeals court ruled that neither the "voluntary cessation" nor the "capable of repetition, yet evading review" exceptions to mootness applied, but nonetheless decided to do a full establishment clause analysis -- Lemon test plus endorsement test -- just because of a claim for nominal damages. Another panel of judges or another appeals court might very well have decided differently. The court decided that the establishment clause was not violated, but decided to award nominal damages anyway. I don't see how the awarding of nominal damages was justified when the appellants did not prevail on the establishment clause claim, but because nominal damages are trivial, it really does not matter. The nominal damages were really nothing more than a consolation prize. The establishment clause analysis was really nothing more than a mental exercise for the judges. Attorney fees were not awarded or even mentioned in the opinion. If attorney fees had been an issue, the judges might very well have decided that the award of only nominal damages did not justify an award of attorney fees.

After days of searching, this O'Connor case is the best thing that Colin has been able to come up with. He has just been "quote mining" obscure, relatively minor cases.

=================================

>>>>>>Declarative relief is relief from a current violation - your asking that some action, as it currently taking place, be declared a violation. Injunctive relief is relief from future violation - you are asking that an action be prohibited in the future. Damages, however, are asking for relief from past violations.<<<<<<

I disagree with your definitions. "Declarative relief" means relief where the court neither requires that something be done nor awards damages. The term "injunctive relief" is too vague because there are so many different kinds of injunctions. Findlaw lists the following different kinds of injunctions:

By time of issuance and duration -- temporary (preliminary), permanent (final), perpetual, and interlocutory injunctions; temporary restraining order

By type -- mandatory, affirmative, and prohibitory injunctions

Also, the terms "prospective relief" and "retroactive relief" are sometimes used to describe relief that applies to the future and the past, respectively.

>>>>>>To declare something moot is to render it hypothetical. <<<<<

Actually, it is often the other way around -- declaring something to be hypothetical often renders it moot. LOL

As you say, some hypothetical things are capable of repetition and others are not. For example, in an individual, pregnancy is often capable of repetition (as in Roe v. Wade), but going through law school is normally not (as in the DeFunis reverse-discrimination case).

>>>>>events in the past are not hypothetical. They actually took place, and they therefore can not be rendered moot - that would be an oxymoron.<<<<<

Not true. In a controversial split decision, the Supreme Court ruled that the DeFunis reverse-discrimination case was moot because DeFunis was about to graduate from law school and he would never again apply for admission to law school.

>>>>>Shouldn't the woman still get her day in court as to whether the man stalked her? <<<<<

Maybe -- it depends on the situation. But a claim for damages for mental harm in a stalking case is quite a bit different from a claim for damages in an establishment clause case.

Wednesday, May 10, 2006 3:44:00 AM  
Blogger Colin said...

Vicklund is right. Your understanding of the law is shockingly, amazingly poor. When you said “in all the cases you have cited, the nominal damages claim was in conjunction with some other claim, e.g., a claim of an establishment clause violation in O'Connor and a claim for punitive damages in Searles,” my jaw dropped. Would you care to begin your next post by explaining what is wrong with that statement, so that we understand that you are at least capable of admitting your own mistakes?

One thing that I have established is that this "Monday morning" debate here can do nothing to excuse the Dover school board. So this debate itself is "moot."

That is one of the three or four dumbest things you’ve said so far - an enormous accomplishment. You quoted a completely irrelevant passage from, if I recall, Edwards and announced that you had “established” that a “Monday morning” debate cannot excuse the school board. That is idiotic. You haven’t established that the board (post-election) did anything wrong in the first place, and any retrospective discussion on the matter is necessarily “Monday morning.” By your insane rhetoric, your out-of-context and irrelevant citation means that no one can ever discuss whether X was right to do Y in the past, because “Monday morning” debates are moot. I’ll repeat myself - making something up and pretending that it is true does not establish or refute anything. It is merely your feeble and febrile mind refusing to consider or admit your own egregious and multifarious errors.

Wrong -- your above description of the case is not correct. For example, the issue of an attorney fee award was not discussed.

Do you understand how your own argument works? You think that the board should have (A) mooted the case so that (B) the plaintiffs would not be “prevailing parties” and could not claim fees. Mootness is a necessary part of your own argument. The case’s approach to mootness illustrates why your own is so stupid.

I had to go to the website of the 10th circuit. Here is the link for the case -- http://www.kscourts.org/ca10/cases/2005/07/04-3103.htm

Thank you for the link; I should have found and posted it when I mentioned the case.

For starters, O'Connor is just a new and obscure decision of the 10th circuit -- it can hardly be considered to be established case law. It certainly cannot compare in importance with Buckhannon, the Supreme Court decision that I cited in my opening post.

It is “established case law” because it is a published decision. Period. It was not binding in Kitzmiller because it is from a different circuit. I mention it only to show that even the TMC understood that your arguments are crazy and wrong. And, again, for the thousandth time, Buckhannon is completely irrelevant to any possible mootness argument in Kitzmiller. Why? Because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Just like in O’Connor, where the declaratory and injunctive claims were mooted but the case went forward on the merits because the plaintiffs had a claim for nominal damages.

The appeals court also ruled that the "capable of repetition, yet evading review" standard did not apply: "Appellants.....have not shown that this case is capable of repetition because they have advanced no explanation as to how Holier Than Thou will return to the Washburn campus in the future."

Are you joking? Are you actually suggesting that the Kitzmiller plaintiffs could not show “how that case is capable of repetition”? Here is a hint: it would go something like, “We barely won the election, and in X years we will run again against a well-organized, well-financed creationist lobby dedicated to reinstating an anti-education policy.”

Another panel of judges or another appeals court might very well have decided differently.

Really? On what grounds? Or are you just making things up again? No appeals court would have held differently. Even the concurring judge, who doesn’t like the outcome, admits that it is the only possible outcome under the law. Your constant games of pretend are not at all persuasive.

The court decided that the establishment clause was not violated, but decided to award nominal damages anyway. I don't see how the awarding of nominal damages was justified when the appellants did not prevail on the establishment clause claim, but because nominal damages are trivial, it really does not matter.

You are as illiterate as you are ignorant. Nominal damages are, of course, very important, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” It was the cause of action for nominal damages that kept the case alive, not an award of damages. How do I know that? Because, aside from the mountain of law establishing the significance of nominal damages, there were no damages awarded in O’Connor. Your reading comprehension is abysmal. These cases really, truly don’t mean whatever you want them to mean. You have to read them carefully and think about them, not just make up stories about what you want them to say.

The nominal damages were really nothing more than a consolation prize. The establishment clause analysis was really nothing more than a mental exercise for the judges. Attorney fees were not awarded or even mentioned in the opinion. If attorney fees had been an issue, the judges might very well have decided that the award of only nominal damages did not justify an award of attorney fees.

Wrong, wrong, wrong, and wrong. Four serious mistakes in four sentences. You are an incredibly efficient moron, I’ll give you that. (1) There were no nominal damages awarded, and they would not have been a consolation prize if they had been - they would have justified an award of fees and costs. (2) The establishment clause analysis was the opinion. Because the cause of action for nominal damages survived, the case survived. The court analyzed the case on the merits, and if they had found an EC violation, they would have remanded so the DCT could award nominal damages and fees. (3) Fees were mentioned in the opinion: “In their complaint, appellants request declaratory and injunctive relief, nominal damages, and reasonable costs and attorneys fees pursuant to 42 U.S.C. § 1988.” (4) The award of nominal damages always justifies the award of fees in a case where fee-shifting is otherwise authorized (as by § 1988, in both Kitzmiller and O’Connor). The exception is where the plaintiffs claim significant compensatory damages but get only nominal damages; the failure to get substantive relief can prevent fee-shifting. But that’s not the case in either case, is it? You have no idea how any of this works, do you? Why do you feel so comfortable pretending to be an expert when you are so completely ignorant of even the most basic legal principles?

After days of searching, this O'Connor case is the best thing that Colin has been able to come up with. He has just been "quote mining" obscure, relatively minor cases.

Please read more carefully. O’Connor is relevant because it (A) shows that even the TMC knew that your arguments are moronic and (B) it illustrates a case that was unmootable because a cause of action for nominal damages persisted. If you want other cases, look at every other case we’ve discussed. You don’t seem to have read any of them yet, and you are completely ignorant of what they say and mean. Here is (another) hint, from your own oft-cited Buckhannon: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

And once more, because you still aren’t reading it: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

=================================

>>>>>>Declarative relief is relief from a current violation - your asking that some action, as it currently taking place, be declared a violation. Injunctive relief is relief from future violation - you are asking that an action be prohibited in the future. Damages, however, are asking for relief from past violations.<<<<<<

I disagree with your definitions. "Declarative relief" means relief where the court neither requires that something be done nor awards damages. The term "injunctive relief" is too vague because there are so many different kinds of injunctions.


You are so obtuse it hurts. And it’s not even because you don’t know any law, although you don’t. Your “definition” of declarative relief does not conflict with Vicklund’s at all: compare “asking that some action, as it currently taking place, be declared a violation” with “relief where the court neither requires that something be done nor awards damages.” And saying “there are many kinds of injunctions” has nothing to do with the fact that injunctive relief is, in fact, just what Vicklund says. I mean, do you really think that characterizing injunctions as temporary or permanent contradicts his characterization? When I called you illiterate previously, I was (mostly) joking. But you’ve convinced me that you really do have some sort of serious difficulty reading and comprehending the written word.


>>>>>events in the past are not hypothetical. They actually took place, and they therefore can not be rendered moot - that would be an oxymoron.<<<<<

Not true. In a controversial split decision, the Supreme Court ruled that the DeFunis reverse-discrimination case was moot because DeFunis was about to graduate from law school and he would never again apply for admission to law school.


You don’t understand a single thing Vicklund wrote, do you? Damages measure past harm. Past harm cannot be rendered moot in the way you keep insisting that they can. DeFunis was not a case for damages: “He asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class entering in September 1971, on the ground that the Law School admissions policy had resulted in the unconstitutional denial of his application for admission.” That is why it was mootable. If it had been a case for damages? Unmootable, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

>>>>>Shouldn't the woman still get her day in court as to whether the man stalked her? <<<<<

Maybe -- it depends on the situation. But a claim for damages for mental harm in a stalking case is quite a bit different from a claim for damages in an establishment clause case.


Not in the way you mean. Because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” The details of the cause of action are irrelevant, so long as it is a valid cause of action.

You really, truly don’t understand anything about the law. I’ll repeat my request: do you understand what is so wrong about your claim that, “in all the cases you have cited, the nominal damages claim was in conjunction with some other claim, e.g., a claim of an establishment clause violation in O'Connor and a claim for punitive damages in Searles”? Here is a hint: what was the underlying cause of action in Kitzmiller?

Wednesday, May 10, 2006 9:07:00 AM  
Anonymous Larry's shrink said...

Hey, I know it's wrong to break the privacy inherent in the physician-patient relationship, but Larry's driven ME nuts, so what the hell!

Anyway, here's my diagnosis of Larry:

hu·bris Pronunciation Key (hybrs) also hy·bris (h-)
n.

Overbearing pride or presumption; arrogance

delusions of grandeur

n : a delusion (common in paranoia) that you are much greater and more powerful and influential than you really are

Wednesday, May 10, 2006 10:16:00 AM  
Blogger Larry Fafarman said...

Reply to post by Colin ( Wednesday, May 10, 2006 9:07:46 AM ) ---

Sigh (an expression I almost never use, but I can't help myself this time). Another harangue from Colin. At least answering them is getting easier because I no longer have to answer his arguments that I have already repeatedly refuted.

>>>>> When you said “in all the cases you have cited, the nominal damages claim was in conjunction with some other claim, e.g., a claim of an establishment clause violation in O'Connor and a claim for punitive damages in Searles,” my jaw dropped. Would you care to begin your next post by explaining what is wrong with that statement, so that we understand that you are at least capable of admitting your own mistakes?<<<<<

There was no mistake -- I read O'Connor and Searles. As for O'Connor, the appeals court said that the establishment clause claim was moot but did a full establishment clause analysis -- Lemon test plus endorsement test -- anyway.

Here again is the link for O'Connor -- http://www.kscourts.org/ca10/cases/2005/07/04-3103.htm

>>>>You haven’t established that the board (post-election) did anything wrong in the first place, and any retrospective discussion on the matter is necessarily “Monday morning.”<<<<<

The new board members did do something wrong -- they broke their campaign promises to repeal the ID policy ASAP and try to prevent or reduce the loss of school district funds in the lawsuit. And retrospective discussions of issues that the board was not aware of are "Monday morning" stuff.

>>>>>The appeals court also ruled that the "capable of repetition, yet evading review" standard did not apply: "Appellants.....have not shown that this case is capable of repetition because they have advanced no explanation as to how Holier Than Thou will return to the Washburn campus in the future."

Are you joking? Are you actually suggesting that the Kitzmiller plaintiffs could not show “how that case is capable of repetition”? <<<<<

Are you joking? I was obviously not talking about Kitzmiller here -- I was talking about O'Connor. sheeesh

>>>>Another panel of judges or another appeals court might very well have decided differently.

Really? On what grounds? <<<<<

What I said was that another panel of judges, having already decided that the establishment clause claim was moot, would very likely not have bothered to go through a long-winded full establishment clause analysis (Lemon test plus endorsement test). That whole analysis was pointless because the claim had already been declared to be moot. Why do you find this so hard to understand? I think that the judges went through the analysis only because of the great publicity about the case -- it was a political thing.

>>>>aside from the mountain of law establishing the significance of nominal damages, there were no damages awarded in O’Connor.<<<<<

Absolutely false ! Here is the conclusion section of O'Connor: "For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages." (emphasis added)

Now you are resorting to outright lies.

>>>>>For starters, O'Connor is just a new and obscure decision of the 10th circuit -- it can hardly be considered to be established case law. It certainly cannot compare in importance with Buckhannon, the Supreme Court decision that I cited in my opening post.

It is “established case law” because it is a published decision. <<<<<

OK, I should have "well-established" instead of just "established." Anyway, as I said, I think that O'Connor was partly a political decision, as is evidenced by the full establishment-clause analysis and awarding of nominal damages despite the ruling that the establishment-clause claim was moot.

>>>>>>“In their complaint, appellants request declaratory and injunctive relief, nominal damages, and reasonable costs and attorneys fees pursuant to 42 U.S.C. § 1988.”<<<<<<

Sorry, I missed that part. Because fees were not mentioned in the conclusion section, I thought that they were not an issue in the case. Anyway, fees were not awarded despite the fact that nominal damages were awarded.

>>>>>The award of nominal damages always justifies the award of fees in a case where fee-shifting is otherwise authorized (as by § 1988, in both Kitzmiller and O’Connor).<<<<<<

The appeals court in O'Connor decided otherwise. Nominal damages were awarded but attorney fees were not awarded. The awarding of attorney fees is discretionary.

>>>>>O’Connor is relevant because it (A) shows that even the TMC knew that your arguments are moronic and (B) it illustrates a case that was unmootable because a cause of action for nominal damages persisted.<<<<<<

We haven't heard any TMLC (not TMC) opinions of my arguments.

If I had known that a claim for nominal damages has this magical ability to prevent a finding of mootness, I would have asked for them in my own lawsuits.

>>>>>>Here is (another) hint, from your own oft-cited Buckhannon: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”<<<<<

I have already refuted your argument here several times, so I do not need to do so again.

>>>>Your “definition” of declarative relief does not conflict with Vicklund’s at all: compare “asking that some action, as it currently taking place, be declared a violation” with “relief where the court neither requires that something be done nor awards damages.”<<<<<

Declaratory relief ("declarative" is good English, but I think that "declaratory" is the preferred legal term) need not concern just current action -- it can concern past action and even future action. It is just a kind of relief that has no prohibitions, no requirements for action, and no award of damages.

>>>>And saying “there are many kinds of injunctions” has nothing to do with the fact that injunctive relief is, in fact, just what Vicklund says.<<<<<<

Kevin Vicklund said that injunctive relief is relief from future violation -- that's baloney. Injunctive relief is often relief from current violation.

I think that you need to go back to high school to take a refresher course in basic legal principles.

Even my shortened responses to you are taking too much of my time. Sheesh.

Wednesday, May 10, 2006 4:04:00 PM  
Anonymous larry's shrink said...

I think that you need to go back to high school to take a refresher course in basic legal principles

Larry, Larry, I've told you time and time again that holding your hands over your ears and refusing to listen won't quiet the voices in your head.

Only your meds will do that.

Colin's a LAWYER, Larry. A practicing attorney. It's not him who needs a high-school refresher course in basic legal principles.

Wednesday, May 10, 2006 4:37:00 PM  
Anonymous W. Kevin Vicklund said...

>>>Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court dismisses appellants' claims for injunctive and declaratory relief as moot and, as a consequence, vacates the judgment of the district court as to those claims since subject matter jurisdiction is now lacking. As to the remaining claim for nominal damages, this court holds that the statue's placement on Washburn's campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message and therefore affirms the decision of the district court.
...
Appellants requested a temporary restraining order, injunctive and declaratory relief, and nominal damages. The district court denied the motion for the temporary restraining order and by consent of the parties consolidated the preliminary injunction hearing with the trial on the merits. After a two-day hearing, the court entered judgment for defendants. Analyzing the question under the three-part test set forth by the Supreme Court in Lemon v. Kurtzman, the district court concluded that the context and content of the statue evinced the secular purposes of broadening the university's educational experience and beautifying the campus. 403 U.S. 602, 612-13 (1971). The court further concluded that a reasonable observer would not find that the statue had the primary effect of conveying a message of disapproval of the Roman Catholic religion, and that the context of an "outdoor museum" mitigated any possible anti-religious significance. O'Connor and Strobl appeal the district court's judgment.<<<

The District Court ruled for the defendants. That means they did not award nominal fees (as well as denying declaratory and injuctive relief). The Circuit Court affirmed the decision of the District Court on the nominal damages claim. That means they did not award nominal fees.

At no point in O'Connor were nominal fees awarded

Is it too much to ask you to read decisions thoroughly?

>>>What I said was that another panel of judges, having already decided that the establishment clause claim was moot, would very likely not have bothered to go through a long-winded full establishment clause analysis (Lemon test plus endorsement test). That whole analysis was pointless because the claim had already been declared to be moot. Why do you find this so hard to understand? I think that the judges went through the analysis only because of the great publicity about the case -- it was a political thing.<<<

No. The judges did not decide that the 'establishment clause claim' was moot. They established that the declarative and injuctive claims were moot. All three are establishment clause claims. You confusing the concept of action with the concept of claim. You are trying to argue that because the court determined an action is not occuring currently and is not likely to occur in the future, the court should not be permitted to determine whether the action that occured in the past was unlawful. Sorry, but that doesn't make any sense.

Wednesday, May 10, 2006 9:37:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 5/10/2006 09:37:36 PM ) --

>>>>>>The District Court ruled for the defendants. That means they did not award nominal fees (as well as denying declaratory and injuctive relief). The Circuit Court affirmed the decision of the District Court on the nominal damages claim. That means they did not award nominal fees.(my emphasis)

At no point in O'Connor were nominal fees awarded (my emphasis) <<<<<<

First we had "nominal damages," and now we have "nominal fees." What in the hell are "nominal fees"?

>>>>>Is it too much to ask you to read decisions thoroughly?<<<<<

Yes, particularly when the parts that I do read contain the information I am looking for. Colin asserted that no damages were awarded in O'Connor, but the opinion's conclusion section showed that nominal damages were awarded.

>>>>> The judges did not decide that the 'establishment clause claim' was moot. They established that the declarative and injuctive claims were moot. All three are establishment clause claims.<<<<<<

Sheeesh. The whole durn lawsuit was presumptively moot because the offending sculpture was gone from the campus. The judges ruled that the lawsuit failed to pass both of the two applicable exceptions to mootness -- the "voluntary cessation" exception and the "capable of repetition, yet evading review" exception. Case dismissed. The court's additional determination that the lawsuit failed a full establishment clause analysis -- the Lemon test plus the endorsement test -- was just gilding the lily.

>>>>You are trying to argue that because the court determined an action is not occuring currently and is not likely to occur in the future, the court should not be permitted to determine whether the action that occured in the past was unlawful.<<<<<

That is exactly what a majority of the Supreme Court argued when dismissing the DeFunis reverse-discrimination case.

Anyway, what do your arguments prove? Absolutely nothing. You are arguing that a 10th Circuit opinion with ink that has barely dried trumps the Supreme Court's opinion in Buckhannon. And nothing in O'Connor is fundamentally contrary to Buckhannon.

I am wasting a lot of my time refuting your and Colin's nonsensical arguments (I guess that's the idea, to waste my time). I often wonder why I bother, because a lot of readers seem to think that you and Colin automatically win just by presenting arguments.

Wednesday, May 10, 2006 11:57:00 PM  
Blogger Larry Fafarman said...

larry's shrink said...

>>>>>Colin's a LAWYER, Larry. A practicing attorney.<<<<<

I don't give a damn what in the hell he is. He can't hide behind a title. He still has to address the issues here.

Thursday, May 11, 2006 12:10:00 AM  
Blogger Larry Fafarman said...

FLAWS IN THE VOLUNTARY CESSATION DOCTRINE AND THE CATALYST THEORY

By way of review, the voluntary cessation doctrine is the principle that a case is not mooted by the defendant's voluntary cessation of the challenged activity where the defendant has the capability of resuming that activity. Also, the "catalyst theory" is the idea that a plaintiff is eligible for a statutory award of attorney fees as a supposed "prevailing party" where there is no judgment or court-ordered relief but it appears that the lawsuit caused the defendant's voluntary cessation of the challenged activity.

A voluntary repeal of the ID policy by the Dover school board would have put the Dover school district back in the same situation as hundreds or thousands of school districts across the USA, that situation being that there is no existing ID policy but that there is a possibility that an ID policy will be enacted in the future. So if the court had banned the ID policy after voluntary repeal of the policy by the board, that would discriminatorily have given the Dover school district residents a protection not available to the residents of hundreds or thousands of similarly situated school districts, solely on the basis that the Dover school district previously had such an ID policy (which also happened to be a policy enacted by a school board that had different members except for one). So the question is: should the voluntary cessation doctrine be allowed to overcome mootness only where the plaintiff is uniquely endangered by the threat of repetition of the challenged action? An example would be the one presented by Kevin: stalking.

Also, as the Supreme Court astutely pointed out in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), perversely the catalyst theory may often be a disincentive for voluntary cessation by the defendant (".....the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct"). The catalyst theory assumes that voluntary cessation is an admission of wrongdoing that automatically entitles the plaintiff to attorney fees, thus discouraging voluntary cessation even where the defendant has reasons for voluntary cessation that have nothing to do with the lawsuit. Indeed, such discouragement was arguably a factor in the new Dover school board's decision to not repeal the ID policy prior to judgment -- in effect, the new school board was told that it could not avoid the fees by repealing the policy, so why bother ?

A lot of lawyers are what I would call "cookbook" lawyers -- they just blindly apply broad legal principles without regard to individual situations.

Thursday, May 11, 2006 4:33:00 AM  
Anonymous W. Kevin Vicklund said...

I apologize for the sloppy language. Nominal fees should have been nominal damges. Let's revisit. Since Larry has an attention span shorter than the gnats he is straining at, let's only use the two most relevant sentences.

>>>After a two-day hearing, the [district] court entered judgment for defendants.
...
This court AFFIRMS the judgment of the district court as to the claim for nominal damages.<<<

Both quotes from the O'Connor opinion.

By entering a judgement for the defendants, the district court ruled against nominal damages. The circuit court upheld the ruling of the district court. At no time did any court award nominal damages in O'Connor.

Thursday, May 11, 2006 7:26:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 5/11/2006 07:26:44 AM ) --

>>>>>>After a two-day hearing, the [district] court entered judgment for defendants.
...
This court AFFIRMS the judgment of the district court as to the claim for nominal damages.


Both quotes from the O'Connor opinion.

By entering a judgement for the defendants, the district court ruled against nominal damages. The circuit court upheld the ruling of the district court. At no time did any court award nominal damages in O'Connor. <<<<<<

It should not be necessary to refer to obscure parts of the opinion in order to correctly interpret the conclusion section of the opinion. Here again is what the conclusion section said:
For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages. -- from http://www.kscourts.org/ca10/cases/2005/07/04-3103.htm

Since the district court ruled in favor of the defendants, then why did the appeals court, in ruling against the claims for injunctive and declaratory relief, say, "this court.....vacates the judgment of the district court as to those claims"? That statement falsely indicates that the district court ruled in favor of those claims, and consequently I mistakenly assumed that the district court also granted nominal damages. So when the appeals court affirmed the district court's judgment as to nominal damages, I though that the appeals court was approving nominal damages too.

Anyway, what have you and Colin proven by your Monday-morning arguments? Absolutely nothing.

Thursday, May 11, 2006 10:28:00 AM  
Blogger Colin said...

Forgive me if I retread ground that Vicklund has ably covered, but I think it’s worth repeating that Larry is (A) completely wrong about mootness, and (B) either too stupid or too dishonest to admit his error. Larry, you are not wrong because you are not a lawyer. You aren’t even necessarily wrong because you are ignorant - law is a difficult field, and most people are largely ignorant when it comes to civil procedure. But you hold yourself out as a knowledgeable commentor, when all you have to offer is mistake after mistake after mistake, well seasoned with casual lies and a stubborn refusal to read or learn or think about the issues.

For example:

It should not be necessary to refer to obscure parts of the opinion in order to correctly interpret the conclusion section of the opinion.

You do, in fact, have to read and comprehend the opinion in order to understand the conclusion. The proof of that is that you have no idea what the conclusion means. Your confusion here is so abject and thickheaded that I’m honestly embarrassed for you. You can’t imagine how stupid you looked insisting that the O’Connor court awarded nominal damages. It was not a difficult decision to read, and your complete failure to understand it is a sure sign of how little effort you put into understanding the law. That is why you are so consistently wrong - you don’t put any thought into your analyses. You come to a conclusion first, then make up whatever facts or law would support that conclusion, regardless of what the law actually says.

That statement falsely indicates that the district court ruled in favor of those claims, and consequently I mistakenly assumed that the district court also granted nominal damages. So when the appeals court affirmed the district court's judgment as to nominal damages, I though that the appeals court was approving nominal damages too.

It doesn’t “falsely indicate” anything. Judicial opinions are written for an educated, or at least literate, audience. That opinion was perfectly understandable to everyone except yourself. You failed to understand it because you didn’t want to understand it - you followed your usual procedure of ignoring anything that doesn’t confirm your preconceptions. Once again, your ignorance and stubborn refusal to read critically or study the law led you to make an embarrassingly stupid mistake.

Anyway, what have you and Colin proven by your Monday-morning arguments? Absolutely nothing.

We have proven, time and time again, that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” And again, because you never seem to read or understand that sentence, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

So now that you understand that O’Connor is a standard example of what happens when a case for damages is otherwise mooted, what do you think would have happened had the board repudiated the policy? Do you understand that the case would have continued, the same decision would have issued, and the board would still be liable for fees?

On to some of your staler froth:

At least answering them is getting easier because I no longer have to answer his arguments that I have already repeatedly refuted.

Why not just set out shortly and simply why you think that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case” doesn’t mean exactly what it says? Once again, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” You could also cite some law, as opposed to your imagination, to support your claim that a settlement offer destroys a cause of action for damages.

There was no mistake -- I read O'Connor and Searles. As for O'Connor, the appeals court said that the establishment clause claim was moot but did a full establishment clause analysis -- Lemon test plus endorsement test -- anyway.

No, moron. The O’C court held that the causes of action for injunctive and declarative relief were moot, but that the nominal damages claim was still live. All three were founded on a claim of an establishment clause violation. The EC violation is what the defendants allegedly did wrong, and the injunctive, declaratory, and damages claims are what the plaintiffs want as a result of that violation. You don’t even understand the basic, day-one-of-law-school vocabulary. Read a book. Or at least read the case - the entire opinion analyses the alleged EC violation, so the court obviously didn’t think it was moot. You are, again, just inventing things that you want to be true without any regard for the actual truth.

The new board members did do something wrong -- they broke their campaign promises to repeal the ID policy ASAP and try to prevent or reduce the loss of school district funds in the lawsuit. And retrospective discussions of issues that the board was not aware of are "Monday morning" stuff.

So your entire argument that they did something wrong is “Monday morning stuff” and therefore an inappropriate discussion? Or are you claiming that your accusations aren’t Monday morning, just the responses to those accusations? I know you don’t listen to your critics, the Supreme Court, the lawyers in the case, the district court, the circuit courts, legal authorities, hornbooks, or cases, but you could at least listen to yourself. You’re frothing at the mouth.

What I said was that another panel of judges, having already decided that the establishment clause claim was moot, would very likely not have bothered to go through a long-winded full establishment clause analysis (Lemon test plus endorsement test). That whole analysis was pointless because the claim had already been declared to be moot. Why do you find this so hard to understand? I think that the judges went through the analysis only because of the great publicity about the case -- it was a political thing.

You don’t think at all. The EC issue was not moot, only two of three claims for relief based on that issue. Because one claim for relief was live, the issue was live. Circuit courts are too busy and too professional to go through pointless analyses for publicity value. They leave irrelevant blatherings to internet crackpots like yourself.

>>>>aside from the mountain of law establishing the significance of nominal damages, there were no damages awarded in O’Connor.<<<<<

Absolutely false ! Here is the conclusion section of O'Connor: "For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages." (emphasis added)

Now you are resorting to outright lies.


We’ve already established that you made a huge, and incredibly dumb, mistake here. Would you care to apologize for calling me a liar?

If I had known that a claim for nominal damages has this magical ability to prevent a finding of mootness, I would have asked for them in my own lawsuits.

If you had a valid claim for fee-shifting and damages, then yes, you should have. What were your lawsuits about? I’m going to go out on a limb and guess that you lost badly. Your filings must have been hilarious.



Sheeesh. The whole durn lawsuit was presumptively moot because the offending sculpture was gone from the campus. The judges ruled that the lawsuit failed to pass both of the two applicable exceptions to mootness -- the "voluntary cessation" exception and the "capable of repetition, yet evading review" exception. Case dismissed. The court's additional determination that the lawsuit failed a full establishment clause analysis -- the Lemon test plus the endorsement test -- was just gilding the lily.

No, dope. Absolutely wrong. Read the decision. The EC violation was a live issue because a claim for damages based on that alleged violation prevented the case from being moot. That is because, once again, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

Anyway, what do your arguments prove? Absolutely nothing. You are arguing that a 10th Circuit opinion with ink that has barely dried trumps the Supreme Court's opinion in Buckhannon.

No. Because Buckhannon does not apply to either Kitzmiller or O’Connor, because those were cases for damages. Buckhannon discusses that distinguishing factor, and concludes that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” O’Connor is merely an example of what happens when a case just like Kitzmiller is otherwise mooted - the case survives and the court goes on to analyze the entire issue because the claim for damages is not mooted. That is because, as the Supreme Court held, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

And nothing in O'Connor is fundamentally contrary to Buckhannon.

That’s right. Because Buckhannon was irrelevant to O’Connor, just as it is irrelevant to Kitzmiller. It’s only worth reading in this context because it concisely and simply summarizes the reason why it does not apply to cases for damages: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”


I am wasting a lot of my time refuting your and Colin's nonsensical arguments (I guess that's the idea, to waste my time).

I’m not trying to waste your time. I’m delighted when you produce new content. Every post from you discredits intelligent-design creationists further, and amply demonstrates why the Kitzmiller plaintiffs were entitled to their victory.

Thursday, May 11, 2006 11:52:00 AM  
Blogger Colin said...

Also, the "catalyst theory" is the idea that a plaintiff is eligible for a statutory award of attorney fees as a supposed "prevailing party" where there is no judgment or court-ordered relief but it appears that the lawsuit caused the defendant's voluntary cessation of the challenged activity.

No one is arguing that the catalyst theory applied in Kitzmiller. Please try to keep up with the discussion, or at least with your own arguments.

Also, as the Supreme Court astutely pointed out in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), perversely the catalyst theory may often be a disincentive for voluntary cessation by the defendant (".....the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct").

The Court in that case also pointed out that their opinion did not apply to cases for damages, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Kitzmiller was a case for damages. Buckhannon does not apply.

A lot of lawyers are what I would call "cookbook" lawyers -- they just blindly apply broad legal principles without regard to individual situations.

And your solution is to not apply any legal principles at all? That’s hardly helpful. I keep citing the Buckhannon case because it is such a simple and concise explanation of why cases with a cause of action for damages cannot be mooted: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” I understand that you don’t like that principle, but ignoring it doesn’t make it go away. Nor does making up new principles with no basis in law, such as your fantasy that a settlement offer voids a cause of action for damages.

Thursday, May 11, 2006 11:53:00 AM  
Anonymous W. Kevin Vicklund said...

The absolute minimum one needs to read to be able to draw any conclusions about a case is the intro and conclusion. Here is what the intro said:

>>> Plaintiffs-appellants Dr. Thomas O'Connor and Andrew Strobl filed suit under 42 U.S.C. § 1983 against Washburn University, the Washburn Board of Regents, and Washburn President Dr. Jerry B. Farley individually and in his official capacity, claiming a statue placed on the Washburn campus violated their rights under the First Amendment of the United States Constitution. The statue in question is entitled Holier Than Thou and depicts the head and upper torso of what appears to be a Roman Catholic bishop. See Attachment. Appellants argue the statue's presence on the campus of a public university constitutes an unconstitutional endorsement of an anti-Catholic message. They seek nominal damages as well as declaratory and injunctive relief.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court dismisses appellants' claims for injunctive and declaratory relief as moot and, as a consequence, vacates the judgment of the district court as to those claims since subject matter jurisdiction is now lacking. As to the remaining claim for nominal damages, this court holds that the statue's placement on Washburn's campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message and therefore affirms the decision of the district court. <<<

Had Larry done even the minimum reading required, he would have known the nominal damages claim was denied by the district court and consequently the circuit court when it affirmed. Instead, without bothering to check despite us telling him to, he assumed that the claim was granted, based on his ignorance of what mooting is and what vacate means, as evidenced by the following paragraph:

>>>Since the district court ruled in favor of the defendants, then why did the appeals court, in ruling against the claims for injunctive and declaratory relief, say, "this court.....vacates the judgment of the district court as to those claims"? That statement falsely indicates that the district court ruled in favor of those claims, and consequently I mistakenly assumed that the district court also granted nominal damages. So when the appeals court affirmed the district court's judgment as to nominal damages, I though that the appeals court was approving nominal damages too.<<<

Vacating a judgement neither affirms nor reverses the judgement. Instead, it makes it as if the judgement was never made. When an appeals court moots a claim that received judgement from a lower court, it has to vacate the previous judgement, otherwise the judgement would remain in effect. This can happen even if the claim could not be considered moot at the time the lower court ruled.

Thursday, May 11, 2006 1:31:00 PM  
Blogger Larry Fafarman said...

Reply to various comments by Colin and W. Kevin Vicklund --

>>>>>You do, in fact, have to read and comprehend the opinion in order to understand the conclusion.<<<<<

Of course, it is impossible to understand the whole case just by reading the conclusion, but the conclusion should give an unambiguous summary of the decision, and the opinion in O'Connor did not. Here again is what the conclusion in the O'Connor opinion said: "For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages." from -- http://www.kscourts.org/ca10/cases/2005/07/04-3103.htm

In view of the appeals court's dismissal of the claims for injunctive and declaratory relief, the term "vacates" implies that the district court granted injunctive and declaratory relief. And the conclusion says that the appeals court "affirms" the judgment on nominal damages, but does not say what kind of judgment was "affirmed." If necessary for the purposes of clarity, the conclusion should have given a complete recap of the what the district court ruled and what the appeals court ruled.

>>>>No, moron. The O’C court held that the causes of action for injunctive and declarative relief were moot, but that the nominal damages claim was still live<<<<<

As I have pointed several times, birdbrain, the problem here is that you are hung up on this "nominal damages" thing. "Nominal damages" were never intended to be a stand-alone claim, but just an incidental and somewhat silly accompaniment to other claims. The only "relief" that nominal damages provide is "comic relief" -- e.g., a Dover plaintiff joked about framing the $1 award. "Nominal damages" were never intended to be a gimmick for preventing mootness. If -- as you say -- nominal damages are being used as such a gimmick, then that would be reason to either outlaw nominal damages or restrict their use.

>>>>>Vacating a judgement neither affirms nor reverses the judgement. Instead, it makes it as if the judgement was never made.<<<<<

Wrong. Vacating a judgment reverses it. A higher court cannot erase or strike from the record a lower court's judgment, i.e., "make it as if the lower court's judgment was never made," as you put it. That lower court judgment will always be part of the record.

>>>>>When an appeals court moots a claim that received judgement from a lower court, it has to vacate the previous judgement, otherwise the judgement would remain in effect. <<<<<

Wrong again. How can a granted claim remain in effect when the highest court that reviewed the claim has declared it to be moot (with the exception that granted claims are sometimes allowed to remain in effect until appeals are exhausted) ?

>>>>No one is arguing that the catalyst theory applied in Kitzmiller.<<<<<

Not true -- the article "The Discovery Institute really needs better lawyers," linked in my opening post, made this argument. The catalyst theory is the basis of the claim that the school board could not have avoided the attorney fee award by repealing the ID policy.

>>>>>So your entire argument that they did something wrong is “Monday morning stuff” and therefore an inappropriate discussion? <<<<<

No, saying that they did something wrong is not "Monday morning stuff." They broke their campaign promises to get rid of the ID policy ASAP and try to save the school district's funds.

>>>>>Circuit courts are too busy and too professional to go through pointless analyses for publicity value.<<<<<<

Wrong. The courts give the most attention to high-profile cases, and decisions are often political. Many judges know that they increase their chances of advancement by making the right political decision.

>>>>What were your lawsuits about?<<<<<

In federal courts, I sued against a $300 California tax called the "smog impact fee," a tax on newly registered out-of-state vehicles that did not have California emissions certifications when new. The tax was eventually declared to be unconstitutional by the state courts (I did not participate in that action). Under the "Tax Injunction Act," California normally has immunity from tax suits in federal courts. I sued both California and the US EPA in federal court, arguing that the Tax Injunction Act did not apply because the smog impact fee was not just a state tax but was based entirely on federal laws and regulations, and I sued the US EPA because I believed that the EPA should have opposed the tax because the tax really violated federal emissions laws, and I argued that the US EPA was therefore a necessary party to the suit and that therefore I could not sue in state court anyway, that sort of thing. What made me mad was that my lawsuits were dismissed without explanation (implying that my briefs had not even been read), and an attorney acquaintance of mine said that my district court judge had a bad habit of doing that. So I continued my appeals all the way to the Supreme Court mainly because I was mad, but it was a good experience because I learned quite a bit about doing legal research, court procedures, that sort of thing. I later found out that my efforts would have been much better spent on generating publicity on the Internet, which I later did, and I did get some positive results that way, and I got prominent mention in a Los Angeles Times article about the tax (the article was written at my suggestion).

>>>>>We’ve already established that you made a huge, and incredibly dumb, mistake here. Would you care to apologize for calling me a liar?<<<<<<

Why should I apologize? At the time I believed that you really were lying. I was not just trying to be malicious.

Kevin Vicklund has never apologized for what he did to me on Panda's Thumb, and that was really malicious.

BTW, I have an update in my opening post concerning a revival of debate on the topic of this thread. It is really unfair that regular commenters on Panda's Thumb and Dispatches from the Culture Wars can come over here and learve comments while I cannot go to those blogs and leave comments. I have definitely been banned by PT and I have probably been banned by Dispatches -- my most recent comments there were not posted.

Thursday, May 11, 2006 5:58:00 PM  
Blogger Larry Fafarman said...

Colin, you have been adding insult to injury by attacking me by name where I have been banned, Panda's Thumb. I don't think that is very ethical. http://www.pandasthumb.org/archives/2006/05/a_little_knowle.html

Also, it is of course very unfair that regular commenters at Panda's Thumb are free to come over here and leave comments while I cannot leave comments over there (at least not under my real name).

Friday, May 12, 2006 3:44:00 AM  
Blogger Colin said...

Larry, you keep talking about what you think nominal damages should mean. But you don't acknowledge that that is not what they do mean. The law is clear on this point. A cause of action for nominal damages precludes mootness. Nominal damages support an award of attorneys' fees. Whether or not you like these legal principles does not make them less binding on courts; the Third Circuit has clearly ruled on that very issue, and Judge Jones would not have been free to moot the case even if he had wanted to. I'm very sorry that the law is not what you want it to be, but it is what it is: clearly and unambiguously, the Kitzmillers' claim for nominal damages precluded mootness.

As for 'attacking' you on the PT, I'm sorry that you feel that it is unethical. I disagree, obviously--I think your ban was justified, especially given your recent attempt to deceive the commenters there with (another) fake ID. Pretending to be a third person not only evades a ban, it's a dishonest attempt to create the false impression that others agree with your arguments.

Having said that, I do respect your willingness to face down your critics on your own blog. While I have a low opinion of you and your character, you are head and shoulders above the DI and UD blogs because you at least expose yourself to criticism.

Friday, May 12, 2006 2:16:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/12/2006 02:16:57 PM ) --

>>>>>As for 'attacking' you on the PT, I'm sorry that you feel that it is unethical.<<<<<

It is especially unethical to take advantage of the fact that you can attack both me and my ideas on PT with impunity because I cannot retaliate here because of my no-censorship pledge.

>>>>>I disagree, obviously--I think your ban was justified, especially given your recent attempt to deceive the commenters there with (another) fake ID.<<<<<<

No, my ban was not justified. Even Kevin Vicklund admits that I was banned before I broke any of PT's rules. And my posting under multiple names on PT pales in comparison to what some commenters have been doing on this blog -- not only using multiple names but impersonating other commenters.

>>>>> Pretending to be a third person not only evades a ban, it's a dishonest attempt to create the false impression that others agree with your arguments.<<<<<

Well, do you think that the folks over at Discovery Institute don't agree with my arguments?

Well, I hope that people will learn to come here if they want to see both sides of an argument, and that PT will soon be history. It is already obvious that there are no real debates going on at PT.

>>>>>>Larry, you keep talking about what you think nominal damages should mean. But you don't acknowledge that that is not what they do mean. The law is clear on this point. A cause of action for nominal damages precludes mootness. <<<<<<

No, the law is not clear on this point. So far, O'Connor, a very recent 10th Circuit case, is the only case you have presented where the court ruled that a claim of nominal damages alone prevented mootness. I checked out Farrar v. Hobby 506 U.S. 103 (1992), another supposed example that you presented, and found that there was no such ruling there. In Farrar, there was declaratory relief -- a finding that the defendants had violated the plaintiffs' civil rights -- in addition to a nominal damages award. Remember how I said that nominal damages are mainly just a token symbol of vindication that accompanies other claims. In O'Connor, the appeals court could have -- and should have -- said that since nominal damages could not be granted without declaratory or injunctive relief and since the claims for declaratory and injunctive relief were moot, the claim for nominal relief was moot also. As I said, I think that the appeals court in O'Connor went through a complete establishment clause analysis because of political considerations.

Also, if there is widespread abuse of nominal-damage claims as a gimmick for preventing mootness, then I would say that corrective action needs to be taken to stop such abuse.

>>>>>Nominal damages support an award of attorneys' fees.<<<<<

Wrong -- the courts decided the opposite in Farrar, even though there was also a finding that the civil rights of the plaintiffs had been violated..

>>>>Whether or not you like these legal principles does not make them less binding on courts; the Third Circuit has clearly ruled on that very issue,<<<<<<

No, the 3rd circuit has not clearly ruled on that issue. I have already refuted your arguments on 3rd circuit cases in my post of Monday, May 08, 2006 4:51:23 PM

>>>>>and Judge Jones would not have been free to moot the case even if he had wanted to. <<<<

Not true -- see above.

>>>>>>I'm very sorry that the law is not what you want it to be, but it is what it is: clearly and unambiguously, the Kitzmillers' claim for nominal damages precluded mootness. <<<<<

Not true -- see above.

Even if you can come up with a good argument as to why the courts should rule a certain way, that does not mean that they are going to rule that way. I have seen where the courts have been wrong on objective facts.

Anyway, the benefit of the doubt was on the side of repealing the ID policy in December, because the Dover school board had nothing to lose by doing so.

>>>>>While I have a low opinion of you and your character, you are head and shoulders above the DI and UD blogs because you at least expose yourself to criticism.<<<<<<

So you have a low opinion of me and my character ? The pot's calling the kettle black -- you take potshots at me over on PT where I am banned. And Kevin Vicklund has been completely impossible.

Friday, May 12, 2006 6:57:00 PM  
Blogger Colin said...

It is especially unethical to take advantage of the fact that you can attack both me and my ideas on PT with impunity because I cannot retaliate here because of my no-censorship pledge.

I neither banned you nor asked for you to be banned. I believe that your conduct since your ban, such as impersonating third parties in order to agree with yourself, makes your claims to have been unjustly persecuted extraordinarily dubious. You are free to criticize me for speaking ill of you at the PT, but I fail to see why you think that you can't respond. You are responding right now, aren't you? Regardless, you won't get any sympathy from me – if I ever thought you deserved a free outlet on someone else's blog, you scotched that idea by lying and creating fictitious third-party yes men. In the end, I just don't care why you were banned. You can keep complaining if you want, but I don't intend to address it any further. It has nothing to do with me.

>>>>>>Larry, you keep talking about what you think nominal damages should mean. But you don't acknowledge that that is not what they do mean. The law is clear on this point. A cause of action for nominal damages precludes mootness. <<<<<<

No, the law is not clear on this point. So far, O'Connor, a very recent 10th Circuit case, is the only case you have presented where the court ruled that a claim of nominal damages alone prevented mootness.


I am not your reference librarian. You have made an extraordinary claim – that nominal damages, despite the clear dictates of precedent (such as, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case”), are meaningless. Do your own research—you have made an extraordinary claim, and it is up to you to find some evidence to support it. You are wrong. The Court clearly expressed the meaning of nominal damages: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” O'Connor applies that dictate without citing it, because there are many cases establishing that principle. Read O'Connor to find them. Read those cases. In the end, you keep insisting that what you want to be true is true. But that's not the case. The truth is that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Period.

I checked out Farrar v. Hobby 506 U.S. 103 (1992), another supposed example that you presented, and found that there was no such ruling there. In Farrar, there was declaratory relief -- a finding that the defendants had violated the plaintiffs' civil rights -- in addition to a nominal damages award. Remember how I said that nominal damages are mainly just a token symbol of vindication that accompanies other claims.

You didn't read very carefully – you cherrypicked words to support your preconceptions without trying to understand the case, or even reading it all the way through. From Farrar:

We therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988. When a court awards nominal damages, it neither enters judgment for defendant on the merits nor declares the defendant's legal immunity to suit. To be sure, a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party. Of itself, "the moral satisfaction [that] results from any favorable statement of law" cannot bestow prevailing party status. No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant. A plaintiff may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages. A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay. As a result, the Court of Appeals for the Fifth Circuit erred in holding that petitioners' nominal damages award failed to render them prevailing parties.” (emphasis added and citations omitted)

The board in Kitzmiller could not moot the plaintiffs' claims for nominal damages. Those nominal damages would have made the plaintiffs prevailing parties even if the other claims had been mooted. Why is that so hard for you to understand? The law is crystal clear:

1. “[F]or so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Buckhannon. Nothing the board could have done would have made the nominal damages claim go away.
2. The DCT would then grant nominal damages, issuing a similarly exhaustive analysis – as O'Connor shows in almost exactly the same position, a claim for nominal damages requires that the EC issues be addressed fully.
3. The plaintiffs would then have been, as they actually are, “a plaintiff who wins nominal damages” and therefore “a prevailing party under § 1988.” Farrar.
4. Ergo, nothing the board could have done would have protected them from the fees award. Except, of course, for not enacting an unconstitutional policy in the first place.

In O'Connor, the appeals court could have -- and should have -- said that since nominal damages could not be granted without declaratory or injunctive relief and since the claims for declaratory and injunctive relief were moot, the claim for nominal relief was moot also.

That is absolutely and completely wrong. Nominal damages can of course be granted without declaratory or injunctive relief. Do you have anything to back your crazy and frankly stupid claim up, or is this just more fantasy? (For the peanut gallery, that's a rhetorical question – Larry is just making this up as he goes along.) Claims of nominal damages don't go moot. How do we know that? Because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” And one more time, because you still aren't reading that line, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” (This is as good a time as any to mention that there is apparently an exception for class actions, which is not relevant to any issue or case remotely involved with Kitzmiller.)

Here is a case that was binding on Judge Jones:

"Although Donovan's claim for declaratory and injunctive relief is moot, her damages and attorney's fees claims continue to present a live controversy. Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir.1985) ("[T]he availability of damages or other monetary relief almost always avoids mootness ···· Damages should be denied on the merits, not on the grounds of mootness."). We shall therefore review the district court's determination, bound up in its October 10, 2002 final order, that Donovan is not entitled to money damages and attorney's fees." Donovan ex rel. Donovan v. Punxsutawney Area School Bd., 336 F.3d 211, 218 (3rd Cir. 2003).

You will of course respond that nominal damages are different from compensatory damages. But that's not true—you just keep repeating it because it's a helpful thing to say, even though you have no actual support for it. Nominal damages are just a kind of damages, not a completely separate thing.

As I said, I think that the appeals court in O'Connor went through a complete establishment clause analysis because of political considerations.

Completely wrong. The court was obligated to go through the analysis, because the nominal damages claim could not have been mooted, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.

Also, if there is widespread abuse of nominal-damage claims as a gimmick for preventing mootness...

There isn't.

>>>>>Nominal damages support an award of attorneys' fees.<<<<<

Wrong -- the courts decided the opposite in Farrar, even though there was also a finding that the civil rights of the plaintiffs had been violated..


You are lying about the finding in Farrar. The Court denied a fees award because the plaintiffs had claimed significant compensatory damages (not the case in Kitzmiller) and won only nominal damages. That meant that they recovered only an insignificant portion of what they claimed, also not the case in Kitzmiller. “In some circumstances, even a plaintiff who formally "prevails" under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party” (emphasis added). That part of the Farrar holding is not applicable to Kitzmiller, because those plaintiffs requested only compensatory damages. Their recovery was total, 100% of what they requested. “Once civil rights litigation materially alters the legal relationship between the parties, "the degree of the plaintiff's overall success goes to the reasonableness" of a fee award under Hensley v. Eckerhart, 461 U.S. 424 (1983). Indeed, "the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Farrar.

Under your ridiculous interpretation, no party winning only nominal damages would ever be awarded fees, and any practicing attorney will tell you that that is not the case.

>>>>Whether or not you like these legal principles does not make them less binding on courts; the Third Circuit has clearly ruled on that very issue,<<<<<<

No, the 3rd circuit has not clearly ruled on that issue. I have already refuted your arguments on 3rd circuit cases in my post of Monday, May 08, 2006 4:51:23 PM


You have confused the verb “refuted” with the phrase “made things up about and ignored”. Let's review:

>>>> "[T]he availability of damages or other monetary relief almost always avoids mootness." Id. at 41.” Doe v. Delie, 257 F.3d 309, 314 (3rd Cir. 2001).<<<<<

Says nothing about whether payment or offer of payment outside of court moots the damage claim.


It also says nothing about whether all judges are immortal Highlander warriors, secretly dueling with ancient swords in the courtroom cafeteria after hours. The reason it doesn't say anything about either claim is that both claims are stupid, wrong, and irrelevant. An “offer of payment,” which is all the board could have made, does not moot a cause of action for damages. I know that you want it to, but the law just doesn't work that way. I keep asking for some proof of your ridiculous theory, and you just keep saying, “Oh, I refuted that.” No. You made up an imaginary rule that has no support whatsoever. I'm sure that impresses the DI and UD crowd, but you have a more critical audience here. Lies aren't law, Larry.

>>>>>and Judge Jones would not have been free to moot the case even if he had wanted to. <<<<

Not true -- see above.


One more time: Lies aren't law, Larry. And while I'm at it, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.

Even if you can come up with a good argument as to why the courts should rule a certain way, that does not mean that they are going to rule that way. I have seen where the courts have been wrong on objective facts.

So the board should have made an argument that it knew was wrong in the hopes that the judge would make a mistake? Lawyers get disbarred for that Larry—unlike you, we are held to professional standards of conduct. Attorneys can only press claim that is not permitted or proper under the law if they are trying to change that law, and then they have to be up front about it. We aren't allowed to mislead the court and hope that it won't notice.

So you have a low opinion of me and my character ?

Very low. You haven't shown any regard for truth or honesty here. You seem to decide that you want X to be true (evolution is a lie, or the board committed malfeasance, or apparently that the Holocaust was a lie) and insist that your assumption is true in the face of all evidence. Here, you haven't read or attempted to understand the cases. The few cases you've skimmed, you've only looked for words or phrases that support your argument – you're hunting soundbytes, nothing more. You keep lying about the law, and making up rules that you think the court and parties should have followed even though those rules are just figments of your imagination. You lie to deceive people and discredit the board, and yes, that gives me a very low opinion of your character.

Saturday, May 13, 2006 12:13:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/13/2006 12:13:37 AM ) --

>>>>>I neither banned you nor asked for you to be banned.<<<<<

I never said that you did. But as I said, you have been taking unfair advantage of the ban by ridiculing me and my ideas over there when you know that it is difficult or impossible for me to defend myself there because of the ban. And Kevin Vicklund is still asking Panda's Thumb to ban and delete me. He is the biggest hypocrite -- I don't see how he can stand to look at himself in a mirror.

>>>>>I believe that your conduct since your ban, such as impersonating third parties in order to agree with yourself, makes your claims to have been unjustly persecuted extraordinarily dubious.<<<<<<

Impersonating imaginary third parties is part of pretending to not be me. The ruse would probably work if Kevin and Rilke's Granddaughter didn't keep pointing fingers at me -- this is especially galling because both Kevin and RG come over here and leave comments. I already know that a lot of other people agree with me, so I don't have to pretend that other people agree with me.

>>>>>but I fail to see why you think that you can't respond. You are responding right now, aren't you? <<<<<<<<

I can't respond on PT. That is my point.

>>>>It has nothing to do with me<<<<<

It has everything to do with you so long as you attack me on PT.

>>>>>“for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”......“for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”.....“for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”<<<<<<

See, you repeated the same quote of the Supreme Court over and over again, like it is some kind of mantra. I pointed out that this statement is at best ambiguous -- the court never said that paying or offering to pay the damages does not moot a claim for damages.

>>>>O'Connor applies that dictate without citing it, because there are many cases establishing that principle.<<<<<

As I said, O'Connor must have been partly a political decision. A lower-profile case probably would have been dismissed as soon as the judges decided that the claims for injunctive and declaratory relief were moot -- the judges probably would not have bothered to go through a moot establishment-clause analysis. And if the case had been low-profile, the opinion probably would not have been published.

>>>>>I checked out Farrar v. Hobby 506 U.S. 103 (1992), another supposed example that you presented, and found that there was no such ruling there.

You didn't read very carefully – you cherrypicked words to support your preconceptions without trying to understand the case, or even reading it all the way through.<<<<<<

No, you are the one who is cherrypicking words. I found out that there was not just an award of nominal damages in Farrar, but that there was also declaratory relief in the form of a finding that the defendants had violated the civil rights of the plaintiffs. The nominal damages of just $1 were just a token of vindication of the plaintiffs' claim of such a violation.

>>>>>(quoting Farrar) -- "A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay. As a result, the Court of Appeals for the Fifth Circuit erred in holding that petitioners' nominal damages award failed to render them prevailing parties.” <<<<<

The Supreme Court was really talking through its hat on that one. They are saying that a defendant must be "forced" to pay as little as $1 to the plaintiff? That a defendant would rather pay a fortune in attorney fees than voluntarily pay $1 in nominal damages to the plaintiff?

As I pointed out, the nominal damages in Farrar were a result of a judgment of violation of civil rights -- the nominal damages just gilded the lily.

>>>>>Under your ridiculous interpretation, no party winning only nominal damages would ever be awarded fees, and any practicing attorney will tell you that that is not the case. <<<<<<

You have not even given a true example of where a party has ever won just nominal damages alone (Farrar is not a true example), let alone an example of such a case where fees were awarded. Anyway, it does not matter whether such examples exist, because the courts have the discretion to deny Sec. 1988 fees, and the Supreme Court used that discretion in Farrar.

Also, as I said, I have already refuted your examples of 3rd circuit cases in my post of Monday, May 08, 2006 4:51:23 PM
.
>>>>>"the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Farrar<<<<<<

You are falsely assuming that the plaintiffs in Kitzmiller would necessarily have succeeded in getting injunctive relief if the ID policy had been repealed prior to judgment. The idea behind repealing the ID policy prior to judgment was to try to have the claim for injunctive relief declared to be moot, as happened in Buckhannon after the state legislature repealed the challenged statute.

>>>>>You will of course respond that nominal damages are different from compensatory damages.<<<<<<

They are different -- that is why they have different names.

>>>>>Also, if there is widespread abuse of nominal-damage claims as a gimmick for preventing mootness

There isn't. <<<<<

Well, so far O'Connor is the only true example you have presented of such abuse -- and the abuse there was of no consequence because the court ruled against the plaintiffs anyway and did not award fees. However, if abuse becomes a big problem, then as I said, corrective action needs to be taken, in the legislatures if necessary.

Nominal damage claims could also be abused for the purpose of awarding attorney fees as well as for the purpose of preventing mootness.

>>>> "[T]he availability of damages or other monetary relief almost always avoids mootness." Id. at 41.” Doe v. Delie, 257 F.3d 309, 314 (3rd Cir. 2001).

Says nothing about whether payment or offer of payment outside of court moots the damage claim.<<<<<

I forgot to add that the above quote says "almost always."

>>>>>An “offer of payment,” which is all the board could have made, does not moot a cause of action for damages.<<<<<<

You have cited no such ruling by a court. And you have shown no instance where just nominal damages alone were granted without some other kind of relief.

>>>>>We aren't allowed to mislead the court and hope that it won't notice. <<<<<

That is bullshit. Attorneys are always making arguments that have flaws that the attorneys hope won't be noticed. And if the attorneys can get away with it, the more power to them.

>>>>>You lie to deceive people and discredit the board, and yes, that gives me a very low opinion of your character. <<<<<<

So the board is a sacred cow? The board deserves to be discredited -- they either showed very poor judgment or behaved dishonestly.

As I said, you can argue until you are blue in the face that the courts should rule a certain way, but that does not mean that they are going to rule that way. And as I said, this Monday-morning stuff does nothing to excuse the board, and the board had no valid reason for not repealing the ID policy in December. Case dismissed.

Saturday, May 13, 2006 8:06:00 AM  
Blogger Colin said...

See, you repeated the same quote of the Supreme Court over and over again, like it is some kind of mantra. I pointed out that this statement is at best ambiguous -- the court never said that paying or offering to pay the damages does not moot a claim for damages.

The Court also never said that dancing a merry jig does not moot a claim for damages. But Larry, if you’re ever a defendant in a suit for damages, I promise you, neither offering to pay the damages nor dancing a jig will make that cause of action go away. You’re just pretending. I keep pointing out that you have to have some support for these ridiculous inventions – you can’t just make up rules and insist that they’re true. They’re not true. If a settlement offer is made, a plaintiff can almost always choose to reject it. (Some courts impose mandatory settlement conferences, which didn’t happen in Dover—that has to happen before trial, and both parties wanted that trial.) If the plaintiffs are forced to accept a settlement, then the plaintiffs are prevailing parties entitled to an award of fees:

““In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees. . . . Although a consent decree does not always include an admission of liability by the defendant . . . it nonetheless is a court-ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the defendant.’ . . . These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney's fees.” Buckhannon(citations omitted)

We’ve gone over this several times. You don’t read, you don’t think, and you don’t learn – you just make up whatever rule or principle would support your preconceptions. You are wrong, Larry, and at this point it would be far less embarrassing for you to abandon your idiotic game of pretend than to keep tilting at windmills.

As I said, O'Connor must have been partly a political decision. A lower-profile case probably would have been dismissed as soon as the judges decided that the claims for injunctive and declaratory relief were moot -- the judges probably would not have bothered to go through a moot establishment-clause analysis. And if the case had been low-profile, the opinion probably would not have been published.

Do you realize how insane that sounds? “This case is exactly on point and cites relevant legal authority that doesn’t support my point. So the court must have been lying for political reasons, because obviously I understand the law better than a panel of three elite federal appellate judges.” And to say that a “lower-profile case probably would have been dismissed as soon as the judges decided that the claims for injunctive and declaratory relief were moot” is just wrong, wrong, wrong. The damages claim was not moot, so the court could not have dismissed it. Why is this so hard for you to follow? You have decent spelling and grammar, so you’re not brain damaged or a complete imbecile. I think it’s what I originally accused you of: you cherish your ignorance, and you jealously protect it against any threat of education. It’s a despicable personality trait.

No, you are the one who is cherrypicking words. I found out that there was not just an award of nominal damages in Farrar, but that there was also declaratory relief in the form of a finding that the defendants had violated the civil rights of the plaintiffs. The nominal damages of just $1 were just a token of vindication of the plaintiffs' claim of such a violation.

Except that’s not what the Court says, is it? The Court doesn’t say that the nominal damages were “just a token of vindication.” "A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay. As a result, the Court of Appeals for the Fifth Circuit erred in holding that petitioners' nominal damages award failed to render them prevailing parties.

Your response to that crystal-clear language?

The Supreme Court was really talking through its hat on that one. They are saying that a defendant must be "forced" to pay as little as $1 to the plaintiff?

So now you understand the law better than (A) the plaintiffs’ lawyers, (B) the board’s lawyers, (C) the Thomas Moore Law Center, (D) the Third Circuit, (E) the Tenth Circuit, and (F) the Supreme Court.

Or, just maybe, the fact that all of those legal thinkers disagree with you means that you’re wrong.

Yes, a defendant must pay nominal damages if he loses the case. That award must be enforced. Courts aren’t in the business of deciding that a particular judgment is too small to enforce.

That a defendant would rather pay a fortune in attorney fees than voluntarily pay $1 in nominal damages to the plaintiff?

How many times do I have to point out the fact that you’re making this up? A defendant’s offer to pay damages does not make the cause of action for those damages magically disappear. Do you have any support for that claim? Of course you don’t, even though you’ve probably been looking hard. That’s because you just made it up. But you’re wrong, Larry. It’s time to grow up and admit it, or at least tacitly move on.

As I pointed out, the nominal damages in Farrar were a result of a judgment of violation of civil rights -- the nominal damages just gilded the lily.

But what you pointed out and what the Supreme Court pointed out were completely different. “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.” Who do you think your readers trust more? You, when you make up rules, or the Supreme Court, when it holds that an award of nominal damages in and of itself makes the plaintiff a prevailing party?

You have not even given a true example of where a party has ever won just nominal damages alone (Farrar is not a true example), let alone an example of such a case where fees were awarded. Anyway, it does not matter whether such examples exist, because the courts have the discretion to deny Sec. 1988 fees, and the Supreme Court used that discretion in Farrar.

You want me to go out and find cases to prove that the Supreme Court meant what it said when it wrote that “a plaintiff who wins nominal damages is a prevailing party under 1988”? I’m not your assistant, Larry. You’ve made a ridiculous and stupid argument – that the Court’s holding was something other than that “a plaintiff who wins nominal damages is a prevailing party under 1988.” If you don’t want that rule to be true, then find your own cases. I don’t have Westlaw access at home in any event. But here’s a place to start: “a plaintiff who wins nominal damages is a prevailing party under 1988.” What’s so confusing about that?

Also, as I said, I have already refuted your examples of 3rd circuit cases in my post of Monday, May 08, 2006 4:51:23 PM

No. You made up ridiculous stories to justify ignoring those cases:

>>>> "[T]he availability of damages or other monetary relief almost always avoids mootness." Id. at 41.” Doe v. Delie, 257 F.3d 309, 314 (3rd Cir. 2001).<<<<<

Says nothing about whether payment or offer of payment outside of court moots the damage claim.


Any support for that principle? No, because you made it up when you realized the law doesn’t agree with your argument. Lies aren’t law, Larry. An offer of payment does not eliminate a cause of action for damages. Pretending that it’s true doesn’t make it so.

>>>>>"the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Farrar<<<<<<

You are falsely assuming that the plaintiffs in Kitzmiller would necessarily have succeeded in getting injunctive relief if the ID policy had been repealed prior to judgment. The idea behind repealing the ID policy prior to judgment was to try to have the claim for injunctive relief declared to be moot, as happened in Buckhannon after the state legislature repealed the challenged statute.


But the damages claim would not have gone away: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” So the case would have gone to judgment on only the damages claim, and the plaintiffs would have recovered 100% of the requested damages. That’s not the case in Farrar, where O’Connor noted that the plaintiff “asked for a bundle and got a pittance.” The plaintiff there requested significant damages and got only $1. The Kitzmillers requested $1 and would have received $1.

>>>>>You will of course respond that nominal damages are different from compensatory damages.<<<<<<

They are different -- that is why they have different names.


They are the same for these purposes -- that is why the Court wrote that “a plaintiff who wins nominal damages is a prevailing party under 1988.” Again, I know that you don’t want this to be true, but it is. Come back to the real world, Larry. Your world of makebelieve is rotting your brain.

>>>>>Also, if there is widespread abuse of nominal-damage claims as a gimmick for preventing mootness

There isn't. <<<<<

Well, so far O'Connor is the only true example you have presented of such abuse -- and the abuse there was of no consequence because the court ruled against the plaintiffs anyway and did not award fees. However, if abuse becomes a big problem, then as I said, corrective action needs to be taken, in the legislatures if necessary.


I have not presented any examples of abuse, because there is no abuse.

Nominal damage claims could also be abused for the purpose of awarding attorney fees as well as for the purpose of preventing mootness.

They could not be abused in that way and are not. The law understands how nominal damages work, even if you don’t: parties know what they’re for and the law has evolved to use them in a sophisticated manner. You, however, refuse to understand or even think about the simplest legal principles, much less the sophisticated ones, so you’re just sure that there is something underhanded going on. There isn’t, you’re just appallingly ignorant and unwilling to educate yourself.


>>>>>An “offer of payment,” which is all the board could have made, does not moot a cause of action for damages.<<<<<<

You have cited no such ruling by a court. And you have shown no instance where just nominal damages alone were granted without some other kind of relief.


I also haven’t cited a court ruling that parties may not duel to the death in lieu of a trial. Some things are obvious, and need not be discussed. You have made up this rule to evade the clear principle that “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” You must find some evidence to support your imaginary rule. You can’t, because there is no such rule. Why would I be able to find a case discussing a nonexistent principle? In any event, we’ve already discussed how, if a party were forced to accept payment, they would still be a prevailing party under Buckhannon and entitled to fees. See the long quotation from Buckhannon at the beginning of this post. Even better, don’t see it---read it.

>>>>>You lie to deceive people and discredit the board, and yes, that gives me a very low opinion of your character. <<<<<<

So the board is a sacred cow? The board deserves to be discredited -- they either showed very poor judgment or behaved dishonestly.


You could be lying to discredit the homeless guy who lives on the corner and I would still be contemptuous of your dishonesty and ignorance. Education is easy and free; you could be reading cases and learning the law. Instead you make things up and repeat them over and over and over again in the hopes that someone will believe you instead of learning the truth. It’s a sad and ugly testament to your character that you would rather lie than learn.

Sunday, May 14, 2006 12:21:00 AM  
Blogger Larry Fafarman said...

Reply to Colin ( 5/14/2006 12:21:23 AM ) --

Colin, it seems that your posts are growing longer as your desperation increases.

When Ed Brayton of "Dispatches From the Culture Wars" tired of my arguments, which was very quickly because he stopped answering new arguments that I was making (unlike your arguments, which are repetitious), he just stopped posting my comments. But because of my no-censorship pledge, I need to keep answering your nonsense. I often wonder why I bother answering you, because your pals from Panda's Thumb, e.g., Kevin Vicklund and Rilke's Granddaughter, think that Darwinists always automatically win their debates.

>>>>>I keep pointing out that you have to have some support for these ridiculous inventions – you can’t just make up rules and insist that they’re true.<<<<<<

Can you find a legal citation that supports the idea that the sun rises in the east and sets in the west?

>>>>>And to say that a “lower-profile case probably would have been dismissed as soon as the judges decided that the claims for injunctive and declaratory relief were moot” is just wrong, wrong, wrong. <<<<<

After the new national rule allowing citation of unpublished opinions in all federal courts goes into effect (the rule goes into effect unless Congress objects before Dec. 1, and the rule will apply to cases decided after next Jan. 1), what will probably happen in lower-profile cases is that there will be no written opinion at all or just a trivial one (e.g., a statement that dismissals are reviewed de novo). In fact, there are already many low-profile cases where there is either no written opinion or just a trivial one.

>>>>>The Supreme Court was really talking through its hat on that one. They are saying that a defendant must be "forced" to pay as little as $1 to the plaintiff?

So now you understand the law better than (A) the plaintiffs’ lawyers, (B) the board’s lawyers, (C) the Thomas Moore Law Center, (D) the Third Circuit, (E) the Tenth Circuit, and (F) the Supreme Court.<<<<<<

OK, what I should have said was that a court would have no need to make a judgment for damages if the defendant pays or offers to pay the damages out of court, with the exception of nominal damages, which as I have said are just a symbolic and rather silly accompaniment to some other kind of relief.

BTW, regarding legal advice that the board received on the proposal to try to avoid the fees by repealing the ID policy, the plaintiffs' and defendants' attorneys were biased (the plaintiffs' attorneys were silent anyway) and the judge had no business giving legal advice, so it boiled down to the opinion of a mere "real estate" attorney against that of a mere "school board" attorney. And the benefit of the doubt supported the real estate attorney.

>>>>>As I pointed out, the nominal damages in Farrar were a result of a judgment of violation of civil rights -- the nominal damages just gilded the lily.

But what you pointed out and what the Supreme Court pointed out were completely different. “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.”<<<<<<<

I pointed out that the courts made a mistake in saying that nominal damages were the only kind of relief provided in Farrar -- there was also declaratory relief in the form of a finding of a violation of civil rights.

>>>>>You want me to go out and find cases to prove that the Supreme Court meant what it said when it wrote that “a plaintiff who wins nominal damages is a prevailing party under 1988”? I’m not your assistant, Larry.<<<<<

You made the assertion -- it is your job to prove it. Your assertion is not self-evident -- it is contrary to common sense because logically a court would not grant nominal damages in the absence of some other kind of relief.

>>>>>>I also haven’t cited a court ruling that parties may not duel to the death in lieu of a trial. Some things are obvious, and need not be discussed.<<<<<<

Which is the same point that I made when I said that I do not need to find -- and that I am not likely to find -- court rulings that support the obvious !

Anyway, as I said, Monday-morning arguments cannot excuse the board.

Sunday, May 14, 2006 7:04:00 AM  
Blogger Colin said...

I pointed out that the courts made a mistake in saying that nominal damages were the only kind of relief provided in Farrar -- there was also declaratory relief in the form of a finding of a violation of civil rights.

So your point is that the Supreme Court erroneously thought that the plaintiffs only won nominal damages, even though its own opinion explained that they also won a declaratory judgment? Your fantasies are getting wilder. The Court clearly and unambiguously focused on nominal damages, and clearly and unambiguously held that an award of such damages is in and of itself sufficient: “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.” That’s not a mistake. The Court knew what the plaintiffs had won. But the question at hand was whether the nominal damages were sufficient, because they were being contrasted with the request of compensatory damages. In answer to that question, the Court held, again, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988.” Seriously, your desperation to avoid the plain and clear black-letter law is shameful. Grow up and address the real world, Larry.

>>>>>You want me to go out and find cases to prove that the Supreme Court meant what it said when it wrote that “a plaintiff who wins nominal damages is a prevailing party under 1988”? I’m not your assistant, Larry.<<<<<

You made the assertion -- it is your job to prove it. Your assertion is not self-evident -- it is contrary to common sense because logically a court would not grant nominal damages in the absence of some other kind of relief.


Larry, I’m not going to go out and hunt down cases that say, “The Supreme Court means what it says.” The Court wrote that “a plaintiff who wins nominal damages is a prevailing party under 1988.” What about that statement makes you think that the Court meant to say, “a plaintiff who wins nominal damages and a declaratory judgment is a prevailing party under 1988”? Deal with the real world, please. The Court’s ruling is clear.

And in any event, it is self-evident and logical that a court would grant nominal damages in the absence of other relief. It happens all the time. It’s exactly what would have happened in O’Connor if the TMLC had prevailed on the EC claim. Why do courts and parties press ND-only cases? Because those cases support fee-shifting, which is obviously a big deal.

You’ve made some huge assertions – that the Court’s ruling should be interpreted in a way opposite to its plain language, that an offer of damages obviates a cause of action for damages, that nominal damages are just a symbol and have no legal effect. But those arguments are wrong, Larry, and worse than that, they’re stupid. You need to find some enormously powerful support for such radical assertions, and you have nothing. No case law. No statutes. No commentary. Nothing but your overactive imagination. Lies aren’t law, Larry. Please come back to the real world.

Anyway, as I said, Monday-morning arguments cannot excuse the board.

I still don’t understand what that is supposed to mean. Why would Monday morning arguments be acceptable to attack the board, but not to defend it? If this actually came up in a legal context---say a malpractice suit---then of course the relevant discussion would be whether the parties did the right thing with the knowledge available to them at the time. What else would the discussion be about? I think you’re just skimming cases for sound bytes again, which is a damned poor way to understand or even identify relevant issues.

Sunday, May 14, 2006 2:58:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/14/2006 02:58:56 PM ) --

>>>>>>I pointed out that the courts made a mistake in saying that nominal damages were the only kind of relief provided in Farrar -- there was also declaratory relief in the form of a finding of a violation of civil rights.

So your point is that the Supreme Court erroneously thought that the plaintiffs only won nominal damages, even though its own opinion explained that they also won a declaratory judgment? <<<<<<<

The opinion explained that the plaintiffs had also won a declaratory judgment, but that statement that you keep quoting over and over again, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” says nothing about the declaratory judgment (i.e., the finding that civil rights had been violated). So I said that the Supreme Court, in making its determination of whether the plaintiffs in Farrar were a prevailing party, made a mistake in overlooking the facts that those plaintiffs had won a declaratory judgment as well as nominal damages and that the declaratory judgment was in fact the basis for the nominal damages. The nominal damages were just gilding on the lily. The lily can't be gilded without the lily. You still have not provided a single example of where a plaintiff actually won just nominal damages and nothing more.

A court may ignore a citation of a precedent if the court can be shown that the citation is ambiguous, taken out of context, or contrary to common sense if literally interpreted. Courts -- including the Supreme Court -- frequently make the mistake of saying things that can be misinterpreted.

You Darwinists accuse Darwinism's critics of "quote mining," yet here your entire premise is based on a single quote that you took out of context and that does not make sense when literally interpreted. Incidentally, UD now has a good article on "quote mining," titled "In Defense of Quoting Darwinists," at http://www.uncommondescent.com/index.php/archives/1120

>>>>>>And in any event, it is self-evident and logical that a court would grant nominal damages in the absence of other relief.<<<<<<

No, it is not logical, for reasons that I have explained many times. And you have not provided a single true example of ND-only relief (Farrar is not a true example).

>>>>>It’s exactly what would have happened in O’Connor if the TMLC had prevailed on the EC claim.<<<<<

I assert that the court would not have granted nominal damages in O'Connor in the absence of injunctive and/or declaratory relief, and the court could grant neither injunctive relief nor declaratory relief because the court had ruled that the claims for those kinds of relief were moot. The court could have -- and should have -- just said that the ND claim was moot because the other claims were moot. I have already gone over this.

>>>>>Why do courts and parties press ND-only cases? Because those cases support fee-shifting, which is obviously a big deal.<<<<<

You claim that ND-only cases are a common practice, yet you have not provided a single example of an ND-only award, and provided just one example -- O'Connor -- of where a court went through a moot analysis of the merits just because there was an ND claim, where all the other claims had been declared moot.

>>>>>Why would Monday morning arguments be acceptable to attack the board, but not to defend it?<<<<<

Most of my arguments against the board are not Monday morning arguments:

(1) The board had nothing to lose by following the proposal to repeal the ID policy prior to judgment.

(2) The board scheduled the Jan. 3 meeting for discussion of the proposal, a date which everyone knew would be too late.

(3) The proposal was not new -- it had already been presented at the previous board meeting.

(4) There was no need for more input from the community -- there had been community input coming out the ears for a year.

(5) Under PA state law, advance notice of a public body's proceedings is not required. The board could have also scheduled a special meeting for early December.

(6) The new members had promised to repeal the ID policy anyway.

(7) Some of the newly elected board members said in mid-November that they did not want the lawsuit to be dismissed.

(8) The only unbiased legal advice came from a real-estate attorney, who supported the proposal, and a school-board attorney, who opposed it. The benefit of the doubt was clearly on the side of the real-estate attorney.

My citation of Buckhannon and my other legal arguments are of course Monday-morning, but they are just incidental.

Your only answer to my above points is just to repeat that Supreme Court citation over and over again, ad infinitum.

Sunday, May 14, 2006 7:02:00 PM  
Blogger Colin said...

The opinion explained that the plaintiffs had also won a declaratory judgment, but that statement that you keep quoting over and over again, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” says nothing about the declaratory judgment (i.e., the finding that civil rights had been violated). So I said that the Supreme Court, in making its determination of whether the plaintiffs in Farrar were a prevailing party, made a mistake in overlooking the facts that those plaintiffs had won a declaratory judgment as well as nominal damages and that the declaratory judgment was in fact the basis for the nominal damages.

Holy shit - that is what you’ve been reduced to arguing? That the Supreme Court forgot what it was writing halfway through an opinion? Let’s weigh the possibilities here: On one hand, maybe nine justices of the Supreme Court, almost fifty bench clerks, an entire Clerk of the Court office, untold professors and lawyers and every court to have analyzed the issue just forgot what the plaintiffs had requested as relief, even though the opinion mentions it in plain text. Maybe they all overlooked that little detail. On the other hand, maybe it’s possible that that little detail doesn’t matter at all, and it’s Larry who’s mistaken, rather than all those justices, judges, professors, litigants and lawyers.

Which is more probable? Your desperation is pathetic, Larry. At what point is it less humiliating for you to admit error than to keep making these sad arguments?

You still have not provided a single example of where a plaintiff actually won just nominal damages and nothing more.

Here is one from Judge Jones’ own circuit: Buss v. Quigg, F.Supp.2d, 2002 WL 31262060 (E.D.Pa. 2002). That district court opinion was affirmed in a written opinion at Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004). I analyze the cases a bit more and provide lengthy quotations in your other relevant thread. Here, I’ll just cite to these cases and ask that you read them.

Really, do you realize that you’re just making these rules up as you go along? Your imagination carries no weight whatsoever - no one cares what you think, without any research whatsoever, the law might be. What the law is is that cases can and do proceed on purely nominal damage bases. I’ve already pointed you to O’Connor, which is another good example.

A court may ignore a citation of a precedent if the court can be shown that the citation is ambiguous, taken out of context, or contrary to common sense if literally interpreted.

None of those things are true in this instance. The precedent is very clear. You just don’t want it to be true, so you wriggle and squirm and desperately invent new rules that no one else has ever heard of.

You Darwinists accuse Darwinism's critics of "quote mining," yet here your entire premise is based on a single quote that you took out of context and that does not make sense when literally interpreted.

I cite small quotations because you don’t read otherwise. And nothing that I have cited doesn’t make sense if literally interpreted - you are just desperate to escape the reach of clear and controlling precedent: “[F]or so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” “[A] plaintiff who wins nominal damages is a prevailing party under 1988.” Those are not quotes taken out of context, and they do not lose their meaning when interpreted (as they should be) literally.

Moreover, my case is not based on “a single quote.” It is based on your total failure to show any way in which the Dover board could have mooted the cause of action for nominal damages against them, and your equally sad failure to show any way in which the plaintiffs’ inevitable victory on that cause of action would not justify an award of damages.

You’ve been reduced to arguing that your imaginary rules, which have no cases, statutes, or legal authority to back them up, control the case and must be positively refuted at every turn. And when those makebelieve rules are refuted, you whine that all the courts that disagree with you (i.e., every one that has addressed the issue) are just being political, and that the Supreme Court forgot what it was writing about halfway through an opinion. Sad, Larry. You’re fast on your way to becoming another JAD.

>>>>>It’s exactly what would have happened in O’Connor if the TMLC had prevailed on the EC claim.<<<<<

I assert that the court would not have granted nominal damages in O'Connor in the absence of injunctive and/or declaratory relief, and the court could grant neither injunctive relief nor declaratory relief because the court had ruled that the claims for those kinds of relief were moot.


It is true that the court could not grant injunctive or declaratory relief once it decided those grounds were moot. That is why it proceeded on just the nominal damages cause of action. What possible reason do you have for saying that the court was mistaken or lying when it said that the nominal damages claim was live? You “assert” it, but you assert lots of stupid things. You just keep failing to provide any legal support for those assertions.

The court could have -- and should have -- just said that the ND claim was moot because the other claims were moot. I have already gone over this.

No, Larry, unlike you the court understood the law and was honest enough to apply it: “The complaint, however, also includes a claim for nominal damages. An award of nominal damages is an appropriate remedy for a violation of the Establishment Clause. Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. This court therefore has jurisdiction to consider the nominal damages claim.” (citations omitted)

Other courts have also clearly and often said that ND claims do not go moot when other claims go moot. See Lynch v. Leis, 382 F.3d 642 (6th Cir. 2004) (“We note briefly that Powers had asserted below a claim for nominal damages, which is normally sufficient to establish standing, defeat mootness, and grant prevailing party status for the purpose of attorney fees under 42 U.S.C. § 1988. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ("[E]ven an award of nominal damages suffices under [the prevailing party] test."); Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("[T]he deprivation of such [absolute] rights [is] actionable for nominal damages"); Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1268 (10th Cir.2004) ("The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable.") (McConnell, J., concurring); Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir.1981) (district court erred in dismissing entire complaint as moot, rather than simply dismissing claim for injunctive relief, where plaintiff sought nominal damages and fees).”)

You claim that ND-only cases are a common practice, yet you have not provided a single example of an ND-only award...

See Buss and the various cases cited in Lynch. See O’Connor, which would have granted ND only (along with fees and costs) had the TMLC prevailed on its EC claim.

You, meanwhile, have not provided a single piece of authority to back up your claim that ND must fail if other causes of action fail. Just like you have not provided a single piece of authority to back up your claim that an offer of payment voids a cause of action for ND. Why not, Larry? Have you decided that you are so brilliant that you don’t need any authority to support your arguments, or are you just not able to find any? I’m going to guess that you haven’t found any - that’s because your arguments are not only wrong, they’re fabulously ignorant of basic legal principles.

If you’re going to press those unsupported arguments in the future, please provide some support for them. “I think this is probably right” doesn’t count. Please find a case, or a statute, or a rule, or something, somewhere, more authoritative than “Larry says.” Larry is wrong.

Monday, May 15, 2006 10:35:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/15/2006 10:35:36 AM ) --

>>>>>Holy shit - that is what you’ve been reduced to arguing? That the Supreme Court forgot what it was writing halfway through an opinion?<<<<<<

Holy shit, look at what you are reduced to doing -- quote mining opinions, including unpublished opinions! Currently four federal circuits do not allow citation of unpublished opinions and the others discourage it. And the new national rule allowing citation of unpublished opinions in all federal circuits (this rule will go into effect if Congress does not object before Dec. 1) will apply only to decisions released on or after next January 1.

Consider your following citation, for example -- Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir.1981) (district court erred in dismissing entire complaint as moot, rather than simply dismissing claim for injunctive relief, where plaintiff sought nominal damages and fees).”). This could be interpreted as meaning that the claim for nominal damages was an implicit claim for declaratory relief because an award of nominal damages is contingent on the granting of some other kind of relief, and that the real reason why the case could not be mooted was that there was still a valid claim for declaratory reilef. Anyway, I am not going to go through all of your "precedents" to find out how they may apply here.

The Wikipedia article on "Damages" says, ".....nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual." Here is the way an online law dictionary defines "nominal damages": "a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but suffered no substantial harm." Another online law dictionary definition is, "damages awarded in a small amount (as one dollar) in cases in which a party has been injured but no loss resulted from the injury or in which the party failed to prove that loss resulted from the injury." If a court holds that all claims other than nominal damages are moot, then the nominal damages claim also becomes moot because this claim is contingent on the granting of other claims. Consider the Defunis reverse discrimination case, which the Supreme Court dismissed as moot because he was about to graduate from the law school whose admissions policies he challenged. Now suppose that Defunis had made a claim for nominal damages (I don't know -- I am just asking a hypothetical question). Would the Supreme Court have said, "we find all of your other claims to be moot, but we are going to make a judgment on the merits anyway to decide whether or not you should get your $1"? Don't be ridiculous.

What if a defendant pays or offers to pay a $1 billion damage claim -- do you think that a court would not then rule that this claim is moot ? You are making a big deal about the $1 nominal damage claim because an offer to pay it would seem as frivolous as the claim itself. As I said a million times, nominal damages are just a token of vindication on some other claim.

>>>>>You claim that ND-only cases are a common practice, yet you have not provided a single example of an ND-only award...

See Buss and the various cases cited in Lynch. See O’Connor, which would have granted ND only (along with fees and costs) had the TMLC prevailed on its EC claim.<<<<<

None of your citations show an example of an actual ND-only award. And if the TMLC had "prevailed" on its EC claim in O'Connor, that would have been a declaratory relief, but the court said in O'Connor that the claim for declaratory relief was moot.

I might not have presented any citations supporting my arguments, but at least my arguments are consistent with the definitions of "nominal damages" and with common sense, whereas yours are not. And as I said, I am not obligated to seek -- and I would be very unlikely to find -- citations that merely support the obvious. Until you provide an example of a case where ND-only relief was actually granted, you are just a bag of hot air. You are just a bag of hot air anyway because none of your Monday-morning arguments here have any bearing on the Dover school board's decision to not repeal the ID policy in December.

Ever hear the story of the little boy who said that the emperor has no clothes? If, for example, someone points out to the courts that they have been misinterpreting a Supreme Court ruling, the courts might say, "gosh, you're right! Now why didn't we think of that?" Indeed, on high-profile issues like abortion, the Supreme Court often revisits previous rulings several times in order to clarify them, modify them, or even scrap them.

Monday, May 15, 2006 2:07:00 PM  
Blogger Colin said...

Holy shit, look at what you are reduced to doing -- quote mining opinions, including unpublished opinions! Currently four federal circuits do not allow citation of unpublished opinions and the others discourage it. And the new national rule allowing citation of unpublished opinions in all federal circuits (this rule will go into effect if Congress does not object before Dec. 1) will apply only to decisions released on or after next January 1.

It’s not “quote mining” to quote language from an opinion, Larry. It’s just quoting, and it’s necessary because you don’t read these cases. I have to spoonfeed them to you as if you were a child. You’d have to show that the quotations are out of context or inaccurate for them to be “quote mining,” and you can’t do that because they’re not. Nor am I citing cases for precedential authority unless I explicitly say so, and those cases are published and binding on their respective lower courts. Where I cited unpublished opinions it was in direct response to your churlish insistence that I go out and find examples of ND which you were too lazy to find for yourself.

“Unpublished” doesn’t mean that a case doesn’t exist, just that it can’t be cited in a brief for a particular principle. It can certainly be used to show you that courts do, indeed, examine ND causes of action without other live claims.

Consider your following citation, for example -- Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir.1981) (district court erred in dismissing entire complaint as moot, rather than simply dismissing claim for injunctive relief, where plaintiff sought nominal damages and fees).”). This could be interpreted as meaning that the claim for nominal damages was an implicit claim for declaratory relief because an award of nominal damages is contingent on the granting of some other kind of relief, and that the real reason why the case could not be mooted was that there was still a valid claim for declaratory reilef.

Your next vapid argument is that one case cited secondhand “could be interpreted” as meaning something completely different from what it says. Of all the cases I cited, you only looked at one, and your only response is that we should pretend it doesn’t say what it says? Pathetic, Larry. Read the case and see what it says! No one would ever interpret that statement as meaning that the ND claim was actually a DR claim, because that is wrong. They are two different things, and courts know that even if you don’t. Read the dissent to Utah - there is a judge who wants them to be seen as the same thing, but who understands that they are not. You keep insisting that nominal damages are somehow something other that what every court and every authority treats them as, but you have no support for this. You just look at all the cases that demonstrate how dumb your argument is and say, “Well, that court was just being political. That court just forgot what it was writing halfway through the opinion. That opinion could be interpreted as meaning something completely different than what it says. I’m not even going to read those other opinions, because they might not agree with me.” Getting sadder by the hour, Larry. Grow up.

Anyway, I am not going to go through all of your "precedents" to find out how they may apply here.

Of course you won’t. You cherish your own ignorance, and are too lazy and too dishonest to learn how the law works. But lies aren’t law, Larry, and no one is going to take your arguments seriously when you’re just making up nonexistent legal rules whenever you need one to suit your latest bullshit.

The Wikipedia article on "Damages" says, ".....nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual." Here is the way an online law dictionary defines "nominal damages": "a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but suffered no substantial harm." Another online law dictionary definition is, "damages awarded in a small amount (as one dollar) in cases in which a party has been injured but no loss resulted from the injury or in which the party failed to prove that loss resulted from the injury." If a court holds that all claims other than nominal damages are moot, then the nominal damages claim also becomes moot because this claim is contingent on the granting of other claims.

You cited three definitions of nominal damages, and then said that if a court holds all other claims moot then the ND claim is moot, too. But the definitions don’t say that, do they, Larry? And you can’t find any cases that say that either, can you? That’s because your argument here is non sequitor. You’re just making it up, and it isn’t true. See all those cases that you refuse to read - causes of action for ND don’t go moot when other claims do. They didn’t in O’Connor (“The complaint, however, also includes a claim for nominal damages. .. Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. This court therefore has jurisdiction to consider the nominal damages claim.”). They didn’t in Utah Animal Rights Coalition. They just don’t go moot, and despite your insistence that this is somehow a settled rule of law, you have absolutely no support for it. The best you’ve managed to do is three definitions of “nominal damages” which say nothing about mootness at all. A cause of action for nominal damages is not contingent on the granting of any other claim. It is solely contingent on the plaintiff proving their cause of action—here, that their First Amendment rights were violated. Read Buss. Your insistence on being ignorant is keeping you from even understanding the vocabulary involved in this discussion.

Consider the Defunis reverse discrimination case, which the Supreme Court dismissed as moot because he was about to graduate from the law school whose admissions policies he challenged. Now suppose that Defunis had made a claim for nominal damages (I don't know -- I am just asking a hypothetical question). Would the Supreme Court have said, "we find all of your other claims to be moot, but we are going to make a judgment on the merits anyway to decide whether or not you should get your $1"? Don't be ridiculous.

Of course you don’t know what happened—you haven’t bothered to read the case. You just made something up. Yes. The Court, if it had granted cert, would have analyzed the issues for the purposes of the nominal damages claim. Why? Because ND are meaningful, not least because they can enable fee-shifting statutes. Where have we seen this happen? O’Connor is a good example. The court analyzed the EC issue solely because there was a live cause of action for nominal damages. (“For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages.”) You think it’s “ridiculous” because you aren’t paying attention to what actually happens in courts of law. You’d rather play games of pretend and pontificate on what you imagine the law to be. Show me proof that it’s “ridiculous.” The mere opinion of such an emptyheaded maroon is meaningless - you need to find something to support your ridiculous inventions.

What if a defendant pays or offers to pay a $1 billion damage claim -- do you think that a court would not then rule that this claim is moot ?

No, moron, it would not be moot just because the defendant offered to pay. The size doesn’t matter, why would it?

You are making a big deal about the $1 nominal damage claim because an offer to pay it would seem as frivolous as the claim itself. As I said a million times, nominal damages are just a token of vindication on some other claim.

You aren’t even reading what I write, much less the cases. The size of the damages claim has nothing to do with it. A settlement offer is meaningless unless it is accepted, at which point it becomes an actual settlement. If the settlement is purely voluntary it can moot the case, but if the court has any role (such as mandating the settlement, or enforcing its terms) then the plaintiffs are prevailing parties and can recover fees under 1988. Buckhannon explains all of this. Read the cases. Again, again, and again, you’re just making things up and pretending that your imagination carries some sort of weight. It doesn’t. Find some support for your allegations. Only in Intelligent Design circles does repeating a lie “a million times” make it true. If you can’t find anything to support your allegations, read at least some of the cases I’ve given you and learn why those allegations are so depressingly vapid.

None of your citations show an example of an actual ND-only award.

READ THE CASES, Larry. Buss is an ND-only award.

Here are some more examples of “actual ND-only award” cases. I found these with negligible effort. Please start to research your lies, to at least make them entertaining.

Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 1238); Wagner v. City Of Holyoke, Massachusetts, 404 F.3d 504 (1st Cir. 2005); Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005); Boston's Children First v. City of Boston, 395 F.3d 10 (1st Cir. 2005).

These are just cases that were taken on appeal on relevant issues in the last year or so. There are many more that were not appealed, or were only appealed on other issues, which you could find by searching district court opinions. I have not excerpted language from these cases, because it’s a waste of time: you won’t read them anyway, and you’ll just whine about “quote mining” (without knowing what that phrase means, of course). If you want more, find them yourself - I am not your research assistant. Better yet, find some case that supports YOUR positive assertion. Except, of course, that you can’t, because your assertion is a lie.

And if the TMLC had "prevailed" on its EC claim in O'Connor, that would have been a declaratory relief, but the court said in O'Connor that the claim for declaratory relief was moot.

READ THE CASES, Larry. The declaratory relief claim in O’Connor was moot. The nominal damages claim was not. They are different causes of action. Do you even understand the difference between a ‘claim’ of an EC violation and a ‘claim’ for damages? I think someone should draw this in a cartoon with single-syllable captions so you can start to catch up with the rest of the literate world.

I might not have presented any citations supporting my arguments, but at least my arguments are consistent with the definitions of "nominal damages" and with common sense, whereas yours are not.

No, your ideas have nothing to do with the definitions of ‘nominal damages.’ You cited some definitions and said, “Look, I’m right!”, but it’s a complete non sequitur. Just more games of pretend. And “common sense” says that when courts say, over and over and over again, that a cause of action for nominal damages cannot be mooted, what they mean is that a cause of action for nominal damages cannot be mooted. But that crystal-clear and logical rule of law would mean that Larry’s argument was wrong, so of course it can’t be true, can it? Therefore “common sense” dictates that all of those courts are mistaken, or activist, or forgetful, or should just be reinterpreted in a completely novel way so as not to conflict with Larry’s imagination.

“Common sense” doesn’t trump the clear rules of law expressed in Buckhannon, Farrar, O’Connor and every other case I’ve cited. Grow up and come and play in the real world. When you’re ready to have a mature discussion about the law, perhaps we can discuss what the law should be. But as for what the law is, you just keep telling lie after lie after lie after lie. You fit in very well with the other creationists, but even I am beginning to tire of listening to you whine about the world doesn’t fit your preconceptions. Learn, Larry, don’t lie.

And as I said, I am not obligated to seek -- and I would be very unlikely to find -- citations that merely support the obvious. Until you provide an example of a case where ND-only relief was actually granted, you are just a bag of hot air. You are just a bag of hot air anyway because none of your Monday-morning arguments here have any bearing on the Dover school board's decision to not repeal the ID policy in December.

Jesus, I don’t think you’ve even been reading your own arguments. You have made a positive assertion: that nominal damages rely on other causes of action. You are responsible for demonstrating that thesis. I have demonstrated that it is not true: read O’Connor, read Buss, read something. You’re all alone in the wilderness crying about how no one believes your stories, and it’s because you don’t read, you don’t think, you don’t learn, you don’t do anything but lie and pout when someone points it out. Grow up, Larry.

Ever hear the story of the little boy who said that the emperor has no clothes? If, for example, someone points out to the courts that they have been misinterpreting a Supreme Court ruling, the courts might say, "gosh, you're right! Now why didn't we think of that?" Indeed, on high-profile issues like abortion, the Supreme Court often revisits previous rulings several times in order to clarify them, modify them, or even scrap them.

You are as arrogant as your are stupid. So now the Supreme Court is not only so forgetful that it misplaced a claim halfway through Farrar, it erred because it doesn’t understand the issue as well as Larry Fafarman. Good thing that Larry knows the law so well, to save every court in the country from the Supreme Court’s mistake!

But let’s pretend, for one second, that Larry’s arrogance is warranted. What if he’s right that the Court made a mistake? Would it matter? No! Because the Kitzmiller court was bound by the existing interpretation of the law as promulgated by the Court and the Third Circuit, which we see from Buss and Donovan is that a cause of action for nominal damages cannot be mooted by a defendant’s change in behavior.

I’m sure CJ Roberts will be calling you real soon, Larry, to get your opinion on what the law should be. But until then, keep spinning your lies. The lower you sink, the more tarnished the creationist legal strategy gets.

Monday, May 15, 2006 4:22:00 PM  
Blogger Larry Fafarman said...

General reply to Colin --

The following post was originally prepared for another thread on this blog. However, I am also posting it here because it also belongs on this thread.

Colin said on "Dover C.A.R.E.S. -- a wolf in sheep's clothing" thread ( 5/15/2006 10:01:09 AM ):

>>>>>See also Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004) (“It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held. ........ (A concurring opinion in this case argues that the Supreme Court’s holding that nominal damages cannot be mooted should be overruled, but acknowledges that the rule is controlling.)<<<<<<<

AT LAST ! After endlessly beating around the bush, you have finally come up with a judicial opinion that squarely faces the issues that I have raised here regarding nominal damages. Now is the time for me to do some "quote mining" of my own from the"concurring opinion" of Judge McConnell in the case above: ( see http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm )

"The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds (citations omitted). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages."

"Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

"Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading. It is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness. Article III justiciability should not be so manipulable."

"Outside of this Circuit, the cases are mixed. The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable...... Second Circuit panels appear to have taken inconsistent positions on the issue. Compare Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (holding that a claim for nominal damages does not avoid mootness), with Davis v. Village Part II Realty Co., 578 F.2d 461, 463-64 (2d Cir. 1978) (holding that in a civil rights action, the availability of either nominal or substantial damages was sufficient to avoid mootness). The Seventh Circuit has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness....... Other circuits have held that cases are not moot where there are claims for both nominal and compensatory or punitive damages." (some citations omitted)

"I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

"....the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim."

McConnell also cites Farrar, but fails to note that Farrar was not really a nominal-damages-only case -- there was declaratory relief in the form of a finding of a violation of civil rights. Hence, if the Supreme Court was truly speaking of ND-only awards when it stated in Farrar, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” then the court was not talking about the Farrar case, and hence this statement could be considered to be mere dictum.

Also, though the courts may allow the cases to proceed on the basis of ND only, I have yet to see an ND-only award. I assert that there is no such thing as an ND-only award. Nominal damages are just a token of vindication, and any finding of vindication is at least declaratory relief. I have never seen nominal damages being granted as just a consolation prize to a plaintiff who has lost on all other claims.

If the courts refuse to stop this abuse of nominal damages claims, then Congress should take action.

Well, anyway, congratulations! You have succeeded in showing -- in spite of yourself -- that there is a real controversy over this issue of nominal damages and mootness. But you have done nothing to excuse the Dover school board's failure to repeal the ID policy in December.

>>>> I will point out, emphatically, that you are a liar. You have a despicable disregard for truth and intellectual integrity.<<<<<

Well, OK. Why don't you also tell that to Judge McConnell, whose above concurring opinion argues the same point that I have been arguing.

>>>>>The Dover plaintiffs had so many attorneys that it was almost a case of too many cooks spoil the broth.

You don’t know what that saying means, do you? The Dover plaintiffs won. Their cooked a tasty meal, as it were.<<<<<<

The defendants should not be expected to pay for beluga caviar and truffles.

Anyway, I showed that there were cases of comparable complexity where there were far fewer plaintiffs' attorneys. You have shown nothing.

>>>>>I don’t really care about your arguments as to the size of the award.<<<<<

I presume that means that you are conceding that I am right about the Dover fee award being excessive. That is how it works for me -- when I decline to debate, it is assumed that I am conceding.

>>>>>But if your arguments on that front are as appallingly stupid and ignorant as the rest of your blather, I think the ACLU and board are forever safe from your impotent and ignorant rage.<<<<<

But they won't be able to escape the rage of angry voters.

Monday, May 15, 2006 6:47:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/15/2006 04:22:43 PM ) --

>>>>>It’s not “quote mining” to quote language from an opinion<<<<<

It's quote mining when quotes are taken out of context.

>>>>>I have to spoonfeed them to you as if you were a child.<<<<<

Well, a child who could thoroughly demolish your arguments like I have done would have to be pretty darned precocious.

>>>>>>Where I cited unpublished opinions it was in direct response to your churlish insistence that I go out and find examples of ND which you were too lazy to find for yourself.<<<<<

"Too lazy" -- LOL ! Why should I try to prove your arguments for you? Anyway, you never give URL links to the opinions that you cite, and opinions are often difficult to find using the searching means that I have available. I don't have access to Westlaw or anything like that. I am certainly going to ignore most of the cases that you cite so long as you do not give URL links to them. But your statement "A concurring opinion in this case argues that the Supreme Court’s holding that nominal damages cannot be mooted should be overruled" looked very promising, so I hunted down the opinion and hit paydirt (see my post of 5/15/2006 06:47:01 PM )!

>>>>>“Unpublished” doesn’t mean that a case doesn’t exist, just that it can’t be cited in a brief for a particular principle.<<<<<<

So far as the local rules of four circuits are concerned, it doesn't exist. The citation of unpublished opinions has been discouraged in the other circuits. And the new national rule allowing citation of unpublished opinions in all federal courts does not require that these opinions ever be treated as binding precedent.

>>>>> Of all the cases I cited, you only looked at one, and your only response is that we should pretend it doesn’t say what it says?<<<<<<

That's not true -- I looked at others, like O'Connor, Farrar, and Utah..

>>>>>No one would ever interpret that statement as meaning that the ND claim was actually a DR claim, because that is wrong. They are two different things, and courts know that even if you don’t. Read the dissent to Utah - there is a judge who wants them to be seen as the same thing, but who understands that they are not. <<<<<<

Ahem. The "dissenting" judge in the Utah decision, Judge McConnell (actually, he wrote a "concurring" opinion where he objected to the basis for the decision), said, "Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

That hardly sounds like the judge "understands" that ND and DR are allegedly not the same thing.

>>>>>You just look at all the cases that demonstrate how dumb your argument is and say, “Well, that court was just being political. That court just forgot what it was writing halfway through the opinion. That opinion could be interpreted as meaning something completely different than what it says."<<<<<<

The ability to analyze, find flaws, and make novel interpretations is what distinguishes good lawyers from bad ones. If all you do is just blindly apply rules from a handbook, you are not a professional but a tradesman.

>>>>>A cause of action for nominal damages is not contingent on the granting of any other claim. It is solely contingent on the plaintiff proving their cause of action—here, that their First Amendment rights were violated.<<<<<

A finding that First Amendment rights were violated is a declaratory relief, and the court may also grant injunctive relief if appropriate. I assert that there is no such thing as an ND-only award. I have never heard of ND being given as a consolation prize to a plaintiff who loses on all other claims. There is a big difference between a case where an ND claim prevents mootness and a case where there is an ND-only award.

>>>>>You cited three definitions of nominal damages, and then said that if a court holds all other claims moot then the ND claim is moot, too. But the definitions don’t say that, do they, Larry? <<<<<<

These are just basic definitions, stupid -- they are not supposed to include everything that the courts have ever ruled about nominal damages, particularly not when those rulings are in conflict.

>>>>>And you can’t find any cases that say that either, can you?<<<<<

Judge McConnell said, "Outside of this Circuit [i.e., the 10th Circuit] the cases are mixed." (see my post of 5/15/2006 06:47:01 PM ) Here is one that Judge McConnell cited -- Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (holding that a claim for nominal damages does not avoid mootness). He also said, "The Seventh Circuit has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness....... Other circuits have held that cases are not moot where there are claims for both nominal and compensatory or punitive damages.". His latter statement about cases in "other circuits" (other than the 2nd, 6th, 7th, 9th, and 10th circuits -- there are 13 circuits, including the DC and Federal circuits) implies rulings that claims for nominal damages alone are not sufficient to prevent mootness.

>>>>>>Ever hear the story of the little boy who said that the emperor has no clothes? If, for example, someone points out to the courts that they have been misinterpreting a Supreme Court ruling, the courts might say, "gosh, you're right! Now why didn't we think of that?"
You are as arrogant as your are stupid. So now the Supreme Court is not only so forgetful that it misplaced a claim halfway through Farrar, it erred because it doesn’t understand the issue as well as Larry Fafarman<<<<<<

Well, the Supreme Court was either forgetful or it did not understand the issue. When the court said, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” the court failed to say that this statement did not apply to the case at hand, because the plaintiffs in Farrar had also won declaratory relief in the form of a finding of violation of civil rights. And if the court was intentionally making a more general statement that was not restricted to Farrar, then the court should have said so.

And that little boy who said that the emperor has no clothes was just a "child," right? I wonder where you got this contempt for children -- they are often smarter than we think.

Tuesday, May 16, 2006 1:53:00 AM  
Blogger Colin said...

I am happy to move this discussion to the more current thread. I will note only two things here:

1. You are citing McConnell’s concurrence rather than the majority opinion, which he also wrote. I understand why – the concurrence supports your argument, while the majority opinion does not. But your choice here intentionally conflates McConnell’s statement of what the law should be with what the law is. You are badly misrepresenting that case. McConnell understands that he was unable to moot that case because neither the law in the 10th Circuit nor the Supreme Court’s precedent nor a clear trend in any other circuit could support such a holding. His concurrence is an argument for a change in the law.

2. Well, the Supreme Court was either forgetful or it did not understand the issue. When the court said, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” the court failed to say that this statement did not apply to the case at hand, because the plaintiffs in Farrar had also won declaratory relief in the form of a finding of violation of civil rights. And if the court was intentionally making a more general statement that was not restricted to Farrar, then the court should have said so.

You should think about how stupid this sounds. The Supreme Court—the nine justices and their clerks, not to mention the Clerk of Court and all of the judges, practitioners, parties, professors, and commentors who have addressed this case---all understood what relief the plaintiff was granted. It was not declaratory relief. Can you cite any language from that case indicating that it was? As far as I can tell, you think that any decision that a plaintiff’s rights were violated is “declaratory relief.” But that is not correct. You don’t understand what “declaratory relief” means. The Court says that “nominal damages” are sufficient because they mean that nominal damages are sufficient. Moreover, they did explicitly state that this was a general holding that would extend beyond Farrar: “We therefore hold that a plaintiff…” It is a general holding intended to be precedential. They didn’t forget the facts of the case, and they didn’t misunderstand the law. You do.

The Supreme Court understands the law better than laypeople, including Larry Fafarman. If you feel compelled to quibble with that, then you have more severe problems than mere ignorance: you should consult a mental health professional.

I wonder where you got this contempt for children -- they are often smarter than we think.

I don’t have contempt for children. But when I need to explore the intricacies of civil procedure, I consult trained adults. I recommend that you do the same the next time you go to court.

Thursday, May 18, 2006 12:43:00 AM  
Anonymous VoiceInWilderness said...

> while I cannot leave comments over there (at least not under my real name). <

Again you admit to using false names on other boards. When will you admit that many of the arguments on this board are with yourself?

Thursday, May 18, 2006 2:14:00 PM  
Anonymous Dave Fafarman said...

Larry said:

Dave Fafarman ( not ! ) said --

>>>>>Actually you are making yourself look like a stupid fool constantly. You don't seem to understand a single thing that is posted here. The arguments seem to go over your head, just like the legal opinions that you pretend to analize.

Cut off this blog. You are an embarrasment to the family.<<<<<<

Now some sleazeball is impersonating my brother !

How do I know ? No. 1 -- my brother would not say something like that. ...


Larry is correct that the above post was an impersonation. (Perhaps the impostor viewed it as payback for Larry's impersonations at Panda's Thumb. I suppose there might be some justice there.)

This post is from the actual Dave Fafarman.

Larry's also correct that I "would not say something like that."

For what I would say, please see http://scienceblogs.com/dispatches/2006/05/fafarman_take_3.php.

Sunday, May 28, 2006 2:03:00 AM  

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